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Registration No. 33-
As filed with the Securities and Exchange Commission on September 26, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ROCKY MOUNTAIN INTERNET, INC.
(Exact name of issuer as specified in its charter)
Delaware 84-1322326
(State of (I.R.S. Employer
Incorporation) Identification No.)
1099 18th Street, Suite 3000
Denver, Colorado 80202
(303) 672-0700
(Address and telephone number of principal executive offices)
ROCKY MOUNTAIN INTERNET, INC. 1997 NON-QUALIFIED STOCK OPTION PLAN
(Full Title of the Plan)
Roy J. Dimoff
President
Rocky Mountain Internet, Inc.
1099 18th Street, Suite 3000
Denver, Colorado 80202
(303) 672-0700
(Name, address and telephone number of agent for service)
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Copy to:
Robert Mintz, Esq.
Deborah Land Buckley, Esq.
Sherman & Howard L.L.C.
3000 First Interstate Tower North
633 Seventeenth Street
Denver, Colorado 80202
(303) 297-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Per Aggregate Offering Registration
Title of Securities to be Registered Registered Share(1) Price(1) Fee(1)
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<S> <C> <C> <C> <C>
Common Stock, par value $.001
per share. . . . . . . . . . . . . . 50,000 $1.00 $50,000 $16.00
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</TABLE>
(1) Calculated pursuant to Rule 457(h)(1).
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Exhibit Index can be found on page 7.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Rocky Mountain Internet,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (File No. 000-28738) are incorporated by reference herein and
shall be deemed to be a part hereof:
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act on Form 10-KSB and Forms 10-KSB/A for
the year ended December 31, 1996.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1996.
(c) The description of the Company's Common Stock contained in the
registration statement filed August 14, 1996 on Form 8-A with the
Commission under the Exchange Act (File No. 001-12063), including any
amendment or report filed for the purpose of updating such description.
All documents, filed by the Company with the Commission 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 this registration statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference in this
registration statement and made a part hereof from their respective dates of
filing (such documents, and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"); PROVIDED, HOWEVER, that the documents
enumerated above or subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the
offering made by this registration statement is in effect prior to the filing
with the Commission of the Company's Annual Report on Form 10-KSB covering such
year shall not be Incorporated Documents or be incorporated by reference in this
registration statement or be a part hereof from and after the filing of such
Annual Report on Form 10-KSB.
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this registration statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
R. Michael Sanchez, a member of Sherman & Howard L.L.C., counsel to the
Company, is the holder of 25,000 shares of the Company's Series A Preferred
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Generally, Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Corporation Law") permits a corporation to indemnify
certain persons made a party or 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 such
person is or was a director or officer of the corporation or is or was serving
at the request of the corporation as a director or officer of another
corporation or enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any such action, suit or proceeding if he acted in
good faith and in a manner that he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal
action or proceeding, if he had no reasonable cause to believe that his conduct
was unlawful. If, however, any threatened, pending or completed action, suit or
proceeding is by or in the right of the corporation, the director or officer is
not permitted to be indemnified in respect of any claim, issue or matter as to
which he is adjudged to be liable to the corporation unless the Delaware Court
of Chancery determines otherwise.
Section 102(b)(7) of the Delaware Corporation Law enables a Delaware
corporation to include a provision in its certificate of incorporation limiting
the personal liability of a director to the corporation or its stockholders for
monetary damages for breaches of fiduciary duty as a director, except that such
provision may not eliminate or limit the liability of a director for (1) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(2) for acts or omissions that are not in good faith or which involve
intentional misconduct or a knowing violation of the law, (3) under Section 174
of the Delaware Corporation Law or (4) for any transaction from which the
director derived an improper personal benefit.
The Company's Bylaws and Certificate of Incorporation provide that the
Company shall, to the full extent permitted by the General Corporation Law of
the State of Delaware, as amended from time to time, indemnify all directors and
officers of the Company. In addition, the Company's Certificate of
Incorporation contains a provision eliminating the personal liability of
directors to the Company or its stockholders for monetary damages arising out of
a breach of fiduciary duty. Under Delaware law, this provision eliminates the
liability of a director for breach of fiduciary duty but does not eliminate the
personal liability of any director based upon breach of the duty of loyalty to
the Company or to its stockholders, acts or omissions not in good faith or which
involve intentional
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misconduct or a knowing violation of law, any violation of Section 174 of the
General Corporation Law (relating to the declaration of dividends and the
purchase or redemption of shares in violation of the General Corporation
Law), or any transaction from which the director derived an improper personal
benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index on page 7.
ITEM 9. UNDERTAKINGS.
(1) The Company hereby undertakes:
(a) 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
Securities Act of 1933;
(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;
(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 (1)(a)(i) and (1)(a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13(a) or Section 15(d) of the 1934 Act that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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(c) 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.
(2) The Company hereby undertakes that, for the purpose of determining any
liability under the Securities Act, each filing of the issuer's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act of (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 the time shall be deemed to be the initial bona fide offering hereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Denver, State of Colorado, on September 26, 1997.
ROCKY MOUNTAIN INTERNET, INC.
By: /s/ ROY J. DIMOFF
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Roy J. Dimoff
President and Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933, this
Form S-8 registration statement was signed by the following persons in the
capacities and on the dates stated. Each of the following persons hereby
appoints Roy J. Dimoff, with full power of substitution, as his true and lawful
attorney-in-fact to sign in his name and on his behalf all amendments to this
registration statement (including post-effective amendments) and ratifies and
confirms all that said attorney-in-fact may do pursuant to this Power of
Attorney.
SIGNATURES TITLE DATE
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/s/ GERALD D. VAN EECKHOUT Chairman of the Board September 26, 1997
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Gerald D. Van Eeckhout
/s/ CHRISTOPHER K. PHILLIPS Director September 26, 1997
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Christopher K. Phillips
/s/ ROY J. DIMOFF President and Chief Executive September 26, 1997
- ---------------------------- Officer (Principal Executive
Roy J. Dimoff Officer), Director
/s/ DAVID L. EVANS Executive Vice President, September 26, 1997
- ---------------------------- Chief Financial Officer
David L. Evans (Principal Financial Officer),
Secretary and Treasurer
/s/ D. KIRK ROBERTS Vice President-Finance September 26, 1997
- ---------------------------- (Principal Accounting Officer)
D. Kirk Roberts
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4.1 Certificate of Incorporation of Rocky Mountain Internet.*
4.2 Bylaws of Rocky Mountain Internet, Inc.*
4.3 Form of Stock Certificate.**
5 Opinion of Sherman & Howard L.L.C. as to the legality of the
Company's Common Stock
23.1 Consent of McGladrey & Pullen, LLP.
23.2 Consent of Baird, Kurtz and Dobson
23.3 Consent of Sherman & Howard L.L.C. (See Exhibit 5)
24 Power of Attorney is included on the signature pages of the
registration statement.
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*Incorporated by reference to Registration Statement on Form SB-2 of Rocky
Mountain Internet, Inc., No. 333-05040C, filed on June 14, 1996.
**Incorporated by reference to Amendment No. 2 Registration Statement on Form
SB-2 of Rocky Mountain Internet, Inc., No. 333-05040C, filed on August 30,
1996.
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Exhibit 5
and Exhibit 23.3
September 26, 1997
Rocky Mountain Internet, Inc.
1099 18th Street, Suite 3000
Denver, Colorado 80202
Re: Validity of Common Stock
Ladies and Gentlemen:
We have acted as counsel to Rocky Mountain Internet, Inc., a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 relating to 50,000 shares of the Company's common stock, par value
$.001 per share (the "Shares").
We have examined the Company's certificate of incorporation, bylaws, and
resolutions of the Company's board of directors authorizing the Shares for
reservation and issuance.
Based on the foregoing examination, we advise you that in our opinion the
Shares of common stock being offered pursuant to the Registration Statement on
Form S-8 have been duly authorized and when issued and sold, will be validly
issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement on Form S-8 referred to above. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933 or the rules and
regulations of the Securities and Exchange Commission thereunder.
Yours truly,
/s/ SHERMAN & HOWARD L.L.C.
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Exhibit 23.1
Rocky Mountain Internet, Inc.
Denver, Colorado
We hereby consent to the incorporation by reference in this Form S-8
Registration Statement of Rocky Mountain Internet, Inc. (the "Company") of our
report dated February 23, 1996 relating to the financial statements of the
Company for the year ended December 31, 1995 appearing in the December 31, 1996
Annual Report on Form 10-KSB, as amended, of Rocky Mountain Internet, Inc.
/s/ McGladrey & Pullen, LLP
Charlotte, North Carolina
September 26, 1997
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Form S-8 dated
September 26, 1997, of our report on the consolidated financial statements in
the Annual Report on form 10-KSB of ROCKY MOUNTAIN INTERNET, INC. for the
year ended December 31, 1996.
/s/ Baird, Kurtz and Dobson
September 26, 1997
Denver, Colorado
