UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ERF WIRELESS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Nevada 76-0196431
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2911 South Shore Boulevard, Suite 100
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League City, Texas 77573
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(Address, Including Zip Code, of Registrant's Principal Executive Office)
Amended 2004 Non-Qualified Stock Compensation Plan
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(Full Title of the Plan)
R. Greg Smith
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2911 South Shore Boulevard, Suite 100
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League City, Texas 77573
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Telephone: (281)538-2101
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(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities To Be Amount Being Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
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Common Stock, par value $0.001 per share 5,000,000 $0.098 $490,000 $52.38
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TOTAL $52.38
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(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h), on the basis of the average
of the high and low prices for a share of common stock as reported by
the Over-The-Counter Bulletin Board.
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EXPLANATORY NOTE
A total of 5,000,000 shares of ERF Wireless, Inc. ("Company") common stock, par
value $0.001, were registered by Registration Statement on Form S-8, File No.
333-121719 to be issued to certain employees, officers, directors and
consultants in connection with the Company's 2004 Non-Qualified Stock
Compensation Plan ("Plan"). On May 25, 2007, the Company's board of directors
approved an amendment to the Plan, which amendment increased the number of
shares to be issued pursuant to the plan from 5,000,000 shares of common stock
to 10,000,000 shares of common stock. The additional 5,000,000 shares are hereby
being registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents filed by ERF Wireless, Inc. ("the Company") with the
Securities and Exchange Commission ("SEC") are incorporated in this Form S-8 by
reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2006; and
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") since the end of
the fiscal year covered by the document referred to in (1) above.
3. The description of the Company's common stock contained in the
Company's Form 10-SB filed September 27, 1999 (File No. 000-27467; Accession
Number 0000890566-99-001311), including any amendment or report filed for the
purpose of updating such description.
4. All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to the Registration Statement that indicate that all
shares of common stock offered have been sold or that deregister all of the
shares then remaining unsold, shall be deemed to be incorporated by reference in
the Registration Statement and to be a part of it from the date of filing of the
documents.
5. The Registration Statement on Form S-8, File No. 333-121719, filed
by the Company with the Commission on December 28, 2004 is incorporated by
reference into this Amendment.
Any statement contained herein or in any document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained in any other subsequently filed document which is or is deemed to be
incorporated by reference herein modifies or superseded such statement. Any such
statement so modified or superseded shall not be deemed to constitute a part of
this registration statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Our common stock is registered under Section 12(g) of the Securities Exchange
Act of 1934 and is listed on the Over-The-Counter Bulletin Board under the
symbol "ERFW."
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's officers and directors are indemnified as provided by the Nevada
Revised Statutes and the Company's bylaws.
Under the Nevada Revised Statutes, director immunity from liability to a company
or its shareholders for monetary liabilities applies automatically unless it is
specifically limited by a company's Articles of Incorporation, the Bylaws or by
Agreement. The Articles of Incorporation do not specifically limit the
directors' liability; however the Bylaws specify the extent and nature of any
liability of directors, as detailed below. There are currently no agreements in
effect, which would limit such liability. Excepted from that immunity are: (a) a
willful failure to deal fairly with the company or its shareholders in
connection with a matter in which the director has a material conflict of
interest; (b) a violation of criminal law, unless the director had reasonable
cause to believe that his or her conduct was lawful or no reasonable cause to
believe that his or her conduct was unlawful; (c) a transaction from which the
director derived an improper personal profit; and (d) willful misconduct.
Our bylaws provide that the Company will indemnify the directors and officers to
the fullest extent not prohibited by Nevada law; provided, however, that the
Company may modify the extent of such indemnification by individual contracts
with the directors and officers; and, provided, further, that we shall not be
required to indemnify any director or officer in connection with any proceeding,
or part thereof, initiated by such person unless such indemnification: (a) is
expressly required to be made by law, (b) the proceeding was authorized by the
board of directors, (c) is provided by us, in our sole discretion, pursuant to
the powers vested us under Nevada law or (d) is required to be made pursuant to
the bylaws.
The Company's bylaws provide that the Company will advance to any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director or officer, of
the company, or is or was serving at the request of the company as a director or
executive officer of another company, partnership, joint venture, trust or other
enterprise, prior to the final disposition of the proceeding, promptly following
request therefore, all expenses incurred by any director or officer in
connection with such proceeding upon receipt of an undertaking by or on behalf
of such person to repay said amounts if it should be determined ultimately that
such person is not entitled to be indemnified under the bylaws or otherwise.
The Company's bylaws provide that no advance shall be made by it to an officer
of the company, except by reason of the fact that such officer is or was a
director of the Company in which event this paragraph shall not apply, in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, if a determination is reasonably and promptly made: (a) by the
board of directors by a majority vote of a quorum consisting of directors who
were not parties to the proceeding, or (b) if such quorum is not obtainable, or,
even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate clearly
and convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Company. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling an
issuer pursuant to the foregoing provisions, the opinion of the Commission is
that such indemnification is against public policy as expressed in the
Securities Act of 1933 and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. Exhibits
Exhibit No. Identification of Exhibit
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4.1 Amendment No. 1 to the Non-Qualified
2004 Stock Compensation Plan
5.1 Opinion of Brewer & Pritchard, P.C.
23.1 Consent of Brewer & Pritchard, P.C. *
23.2 Consent of Independent Auditor
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* Included in its opinion filed as Exhibit 5.1
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
i. To include any prospectus required by Section
10(a)(3) of the Act;
ii. To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
iii. To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 6 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the city
of League City, State of Texas, on May 25, 2007.
ERF WIRELESS, INC.
By: /s/ H. Dean Cubley
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Name: H. Dean Cubley
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Title: Chief Executive Officer
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Pursuant to the requirements of the Securities Act, this registration statement
has been signed by the following persons in the capacities and on the date
indicated.
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Signature Title Date
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/s/ H. Dean Cubley
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H. Dean Cubley Chief Executive Officer & May 25, 2007
Chairman of the Board
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/s/ R. Greg Smith
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R. Greg Smith Chief Financial Officer May 25, 2007
& Director
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/s/ Bartus H. Batson
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Bartus H. Batson Director May 25, 2007
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/s/ John A. Burns
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John A. Burns Director May 25, 2007
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