<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1998
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AUDIOHIGHWAY.COM
(EXACT NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
----------------
CALIFORNIA 7375 77-0377306
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NO.) IDENTIFICATION NO.)
AUDIOHIGHWAY.COM
20600 MARIANI AVENUE
CUPERTINO, CA 95014
TELEPHONE (408) 255-5301
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES
AND PRINCIPAL PLACE OF BUSINESS)
----------------
NATHAN M. SCHULHOF
AUDIOHIGHWAY.COM
20600 MARIANI AVENUE
CUPERTINO, CA 95014
TELEPHONE: (408) 255-5301
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------
Copies to:
GROVER T. WICKERSHAM, ESQ. JOHN J. HALLE, ESQ.
DEBRA K. WEINER, ESQ. STOEL RIVES LLP
GROVER T. WICKERSHAM, P.C. 900 SW FIFTH AVENUE, SUITE 2300
430 CAMBRIDGE AVENUE, SUITE 100 PORTLAND, OR 97204
PALO ALTO, CA 94306
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /X/ SEC File No.
333-59823
If this Form is a post-effective amendment filed pursuant to Rule
462(c) check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(d) check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED UNIT PRICE(1) FEE
<S> <C> <C> <C> <C>
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
Units,(2) each consisting of: ............... 230,000 $6.50 $1,495,000 $415.61
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
(i) one share of Common Stock; and ...... 230,000 -- -- --
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
(ii) one Warrant to purchase one
share of Common Stock ............... 230,000 -- -- --
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
Units issuable upon exercise of the
Representative's Warrants(3), each
consisting of: .............................. 20,000 7.80 156,000 43.37
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
(i) one share of Common Stock; and ...... 20,000 -- -- --
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
(ii) one Warrant to purchase one
share of Common Stock ............... 20,000 -- -- --
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
Shares of Common Stock issuable upon
exercise of Warrants, including Warrants
underlying Representative's Warrants(4) ..... 250,000 9.75 2,437,500 677.63
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
----------------------
Totals .............................. $4,088,500 $1,136.61
- --------------------------------------------- ------------------- --------------------- --------------------- ----------------------
----------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(a) promulgated under the Securities Act of 1933, as
amended.
(2) Includes 30,000 Units that Paulson Investment Company, Inc., the
representative of the several underwriters (the "Representative") has
the option to purchase to cover over-allotments, if any (the "Over-
allotment Option").
(3) In connection with the sale of the Units, the Registrant is granting to
the Representative warrants to purchase 20,000 Units (the "Representative's
Warrants").
(4) Pursuant to Rule 417, there are also being registered such additional
shares of Common Stock as may be issuable pursuant to the anti-dilution
provisions of the Warrants and the Representative's Warrants.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
INCORPORATION BY REFERENCE
This Registration Statement on Form SB-2 is being filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended. The contents of the
Registration Statement on Form SB-2 (Commission File No. 333-59812) filed by
audiohighway.com (the "Company") with the Securities and Exchange Commission
as declared effective on December 17, 1998, are incorporated herein by
reference.
EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
5.1 Opinion of Grover T. Wickersham, P.C., as to the legality of the securities
23.1 Consent of Grant Thornton LLP
23.2 Consent of Grover T. Wickersham, P.C. (included in Exhibit 5.1)
24.1 Powers of Attorney (included on signature pages)
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form SB-2 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cupertino, California,
on December 17, 1998.
audiohighway.com
By: /S/ NATHAN M. SCHULHOF
------------------------
Nathan M. Schulhof
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Nathan M. Schulhof and Grant
Jasmin, and each of them, his attorneys-in-fact and agents, each with full
power of substitution, for him/her and in his/her name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement on Form SB-2, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection with this Registration Statement, as fully
to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that any of said attorneys-in-fact and agents,
or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this amended Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<S> <C> <C>
/S/ NATHAN M. SCHULHOF President, Chief Executive December 17, 1998
- --------------------------- Officer and Director (Principal
Nathan M. Schulhof Executive Officer)
/S/ GREGORY SUTYAK Chief Financial Officer December 17, 1998
- --------------------------- (Principal Financial and
Gregory Sutyak Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/S/ GRANT JASMIN Director December 17, 1998
- ---------------------------
Grant Jasmin
/S/ ROBERT S. LEFF Director December 17, 1998
- ---------------------------
Robert S. Leff
/S/ LEE M. GAMMILL Director December 17, 1998
- ---------------------------
Lee M. Gammill
/S/ MUNINDERPAL REHKI Director December 17, 1998
- ---------------------------
Muninderpal Rehki
Director
- ---------------------------
Marvin M. Reiss
</TABLE>
<PAGE>
Exhibit 5.1
GROVER T. WICKERSHAM
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
430 CAMBRIDGE AVENUE, SUITE 100
PALO ALTO, CALIFORNIA 94306
GROVER T. WICKERSHAM TELEPHONE: (650) 323-6400 E-Mail Address:
DEBRA K. WEINER FAX: (650) 323-1108 [email protected]
December 17, 1998
audiohighway.com
20600 Mariani Avenue
Cupertino, CA 95014
Re: Registration Statement on Form SB-2
Gentlemen:
We have acted as counsel for audiohighway.com, a California corporation
(the "Company"), in connection with the preparation and filing of a registration
statement on Form SB-2, Registration No. 333-59723 (the "Registration
Statement"), and a related new registration statement (the "New Registration
Statement") filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission relating to the public
offering by the Company of (i) 2,200,000 Units, each Unit consisting of one
share of its Common Stock, no par value and one Common Stock Purchase Warrant
(the "Firm Units"), (ii) an additional 330,000 Units to cover over-allotments,
if any (the "Over-allotment Units"); collectively , the Firm Units and the
Over-allotment Units are referred to the "Units"; and (iii) up to 230,000 Units
issuable upon exercise of the Representative's Warrants issuable to Paulson
Investment Company, Inc., the representative of the several underwriters (the
"Representative").
In connection with the opinions expressed herein, we have examined the
following documents: (i) the Registration Statement (including exhibits
thereto), as amended through the date hereof; (ii) the New Registration
Statement (including exhibits thereto); (iii) the Articles of Incorporation of
the Company, as amended; (iv) the Bylaws of the Company, as amended; (v) the
minute books of the Company; (vi) the form of Underwriting Agreement to be
executed and delivered by the Company and Paulson Investment Company, Inc., as
representative of the several underwriters (the "Underwriting Agreement"); (vii)
the forms of Common Stock certificate and Warrant certificate of the Company;
and (viii) such other documents as we have deemed necessary or appropriate.
In our examinations, we have assumed the genuineness of all signatures,
the legal capacity of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, photostatic or facsimile copies and the
authenticity of the originals of such documents.
Based upon our examination of the foregoing documents, and expressly
subject to the assumptions set forth above, it is our opinion that:
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audiohighway.com
December 17, 1998
Page 2
1. The Firm Units, including the Common Stock and Warrants
contained therein, when issued, sold and delivered against payment therefor
as described in the Registration Statement and the New Registration
Statement, will be validly issued, fully paid and non-assessable.
2. If and to the extent the over-allotment option is exercised,
the Over-allotment Units, including the Common Stock and Warrants contained
therein, when issued, sold and delivered against payment therefor as
described in the Registration Statement and the New Registration Statement,
will be validly issued, fully paid and non-assessable.
3. If and to the extent the Representative's Warrants are
exercised, the Representative's Warrants Units, including the Common Stock
and Warrants contained therein, when issued, sold and delivered against
payment therefor as described in the Representative's Warrants, the
Registration Statement and the New Registration Statement, will be validly
issued, fully paid and non-assessable.
4. If and to the extent the Warrants are exercised, the Common
Stock issuable upon exercise thereof, when issued, sold and delivered against
payment therefor as described in the Warrants, the Registration Statement and
the New Registration Statement, will be validly issued fully paid and
non-assessable.
This opinion is rendered solely to you in connection with the above
matter, and may not be relied upon by you for any other purpose or relied
upon by or furnished to any other person without our prior written consent.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the New Registration Statement and to the use of the name of our firm under
the caption "Validity of the Issuance of the Common Stock" in the prospectus
included as a part of the Registration Statement which has been incorporated
by reference into the New Registration Statement. In giving this consent, we
do not thereby admit that we are within the category of persons whose consent
is required by Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Grover T. Wickersham, P.C.
Grover T. Wickersham, P.C.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference into this Registration
Statement on Form SB-2 of our report dated July 23, 1998, except for Note 7
as to which the date is December 11, 1998 accompanying the financial
statements of audiohighway.com contained in the Registration Statement on
Form SB-2 (Registration No. 333-59823). We also consent to the use of our
name as it appears under the captions "Selected Financial Data" and "Experts"
in the Prospectus included in the Registration Statement (Registration No.
333-59823), which Prospectus is incorporated by reference into this
Registration Statement.
GRANT THORNTON LLP
San Jose, California
December 17, 1998
