As filed with the Securities and Exchange Commission on May 6, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
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WALLSTREET RACING STABLES, INC.
(Exact name of registrant as specified in its charter)
Colorado 1748 84-1120323
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
5525 Erindale Drive, Suite 201, Colorado Springs, Colorado 80918
(719) 260-8509
(Address and telephone number of registrant's principal executive offices and
place of business)
NON-QUALIFIED STOCK OPTION AND STOCK GRANT PLAN
(Full title of the plan)
Raymond E. McElhaney,
President
Wallstreet Racing Stables, Inc.
5525 Erindale Drive, Suite 201
Colorado Springs, Colorado 80918
(719) 260-8509
(Name and address and telephone number of agent for service)
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Copies of all communications, including all communications sent to the agent
for service, should be sent to:
David J. Babiarz, Esq.
Overton, Babiarz & Sykes, P.C.
7720 E. Belleview Avenue
Building 46-B, Suite 200
Englewood, CO 80111
(303)779-5900
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed aggregate Amount of
securities to Amount to be maximum offering offering price(1) registration
be registered registered price per unit(1) fee(1)
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Common Shares,
$.001 par value
per share 1,000,000 $1.375 $1,375,000 $382.25
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(1) Based upon the average of the bid and asked prices for the Company's Common
Stock on April 30, 1999, as required by Rule 457(h)(1).
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PART I
Information Required in the Section 10(A) Prospectus
Information required by Part 1 of this Form is included in documents sent
or given to participants as specified by Rule 428(b)(1) under the Securities
Act of 1933, as amended (the "Securities Act"). In accordance with Rule 428(a)
and the requirements of Part I of Form S-8, such documents are not being filed
with the Securities and Exchange Commission (the "Commission") either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act.
This Registration Statement also contains a Prospectus, prepared in
accordance with the requirements of Part I of Form S-3 (in accordance with
Section C of the General Instructions to Form S-8), which covers re-offers and
re-sales by directors and executive officers of the Registrant of shares of the
Common Stock that may be issued under the Non-Qualified Stock Option and Stock
Grant Plan (the "Plan").
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PROSPECTUS
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WALLSTREET RACING STABLES, INC.
Common Stock,
$.001 par value per share
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This Prospectus may be used in connection with the offering, from time to
time, by certain shareholders (the "Selling Shareholders") of Wallstreet Racing
Stables, Inc. (the "Company"), of up to 1,000,000 shares (the "Shares") of
common stock, par value $.001 per share (the "Common Stock"), of the Company,
which may be acquired pursuant to (i) the exercise of options (the "Options")
granted to certain directors or executive officers of the Company under the
Company's Non-qualified Stock Option and Stock Grant Plan (the "Plan") or (ii)
the grant of Shares to such officers and directors pursuant to that Plan.
The Company has been advised that the Shares may be sold through
underwriters or dealers, through brokers or other agents, or directly to one or
more purchasers, at market prices prevailing at the time of sale or at prices
otherwise negotiated. The aggregate proceeds to the Selling Shareholders from
the sale of the Shares so offered will be the purchase price of the Shares sold
less the aggregate commissions, discounts and other compensation, if any, paid
to broker-dealers and other expenses of the offering and sale of the Shares.
The Company knows of no selling arrangement between any broker-dealer and the
Selling Shareholders. The Company will not receive any of the proceeds from
the sale of the Shares but will bear all of the expenses of registering the
Shares under the Securities Act of 1933, as amended (the "Securities Act").
(See "PLAN OF DISTRIBUTION")
The shares of the Company's Common Stock are traded over the counter and
quoted in the Bulletin Board maintained by the NASD under the symbol WRSB. On
May 5, 1999 the closing high bid and low asked prices of the Common Stock as
reported in the Bulletin Board was $1.25 and $2.50, respectively.
The Selling Shareholders and any broker-dealers that participate with the
Selling Shareholders in the offering and sale of any of the Shares may be
deemed to be "underwriters" within the meaning of the Securities Act, and any
discount or commission received by them and any profit on the resale of the
Shares purchased by them may be deemed to be underwriting commissions or
discounts under the Securities Act. (See "PLAN OF DISTRIBUTION")
THE SECURITIES OFFERED BY THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS," PAGE 5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is May 6, 1999.
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No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation must not be relied upon as having been
authorized by the Company. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities offered in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation, or in any jurisdiction where such solicitation is not
authorized, or in which the person making such offer or solicitation is not
qualified to do so. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company or that the information
contained or incorporated by reference herein is correct as of the time
subsequent to its date.
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TABLE OF CONTENTS
AVAILABLE INFORMATION...............................................4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.....................4
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS...................5
RISK FACTORS........................................................5
No Assurance of Continuation of Thoroughbred Business..........5
Limited Operating History and Revenues, Competition............5
Limited Capitalization and Working Capital.....................6
Dependance On Key Personnel....................................6
Limited Trading Market For the Company's Common Stock..........6
Penny Stock Regulation.........................................6
Limitation on Share Ownership..................................7
Risks Related to Thoroughbred Racing...........................7
Thoroughbred Racing Business...................................7
Lack of Dividends..............................................7
Possible Rule 144 Sales and Market Overhang....................8
Government Regulation of Racing................................8
THE COMPANY.........................................................8
SELLING SHAREHOLDERS................................................8
PLAN OF DISTRIBUTION................................................9
EXPERTS.............................................................9
LEGAL MATTERS......................................................10
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files or will file reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements, and other information may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549; and at the following regional offices: the
Northeast Regional Office, 7 World Trade Center, Suite 1300, New York, New York
10048, and the Midwest Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such material can
be obtained by written request from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, the
Commission maintains a Web site at http://www.sec.gov that contains reports,
proxy and information statements and other information regarding registrants
that file electronically with the Commission.
The Company has filed with the Commission a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the securities included in this
Prospectus. For further information concerning the Company and the shares
offered hereby, reference is made to the Registration Statement and the
exhibits thereto. Any interested party may inspect the Registration Statement,
and the exhibits thereto, without charge, at the public reference facilities of
the Commission and may obtain copies of all or any portion of the Registration
Statement from the Commission upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are incorporated by reference in this Prospectus:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998 (File No. 0-23823);
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1998 (File No. 0-23823);
(c) The Company's Quarterly Report on Form 10-QSB for the quarter ended
December 31, 1998 (File No. 0-23823); and
(d) The description of the Common Stock contained in the Company's Form 8-
A dated February 19, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the shares described in this Prospectus shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
that also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statements so modified or superseded shall not
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be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, copies of any or all of the documents
which are incorporated by reference herein (other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference into
such documents). Requests for such documents should be directed to Wallstreet
Racing Stables, Inc., 5525 Erindale Drive, Suite 201, Colorado Springs,
Colorado 80918, telephone: (719) 260-8509, attention: Raymond E. McElhaney,
President.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus (including the documents incorporated herein by reference)
contains "forward-looking statements" within the meaning of the federal
securities laws. Such forward-looking statements include, without limitation,
statements regarding the Company's need for working capital, future revenues
and results of operations and are identified by words such as "anticipates,'
"plans," "expects" and "estimates." A variety of factors could cause the
Company's actual results to differ materially from those contemplated by these
forward-looking statements, including, without limitation, those discussed
under "Risk Factors" below. Most of these factors are beyond the control of
the Company. Investors are cautioned not to put undue reliance on forward-
looking statements.
RISK FACTORS
THE SECURITIES OFFERED BY THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK.
EACH PROSPECTIVE PURCHASER OF THE SHARES OFFERED HEREBY SHOULD CAREFULLY READ
THE ENTIRE PROSPECTUS BUT SHOULD GIVE SPECIAL CONSIDERATION TO THE RISK FACTORS
DESCRIBED BELOW.
No Assurance of Continuation of Thoroughbred Business. The Company has
operated in the thoroughbred horse racing industry since its inception in July,
1995. However, the Company has been unable to generate a profit since that
date and remains dependent on achieving profitable operations and/or receipt of
additional financing to continue as a going concern. In an effort to increase
its revenues and generate additional investor interest in the Company, a letter
of intent with a privately-held consumer products manufacturing and
distribution company was executed by the Company in November, 1998. Pursuant
to that letter of intent, the Company proposed to acquire, by merger or
acquisition, all of the assets of that entity. This non-binding letter of
intent is subject to a number of contingencies, and there is no assurance that
the transaction will be consummated. Nonetheless, consummation of the
acquisition would result in the entry of the Company into a completely new
industry with no assurance of its success. Also in that event, there is no
assurance that the Company's participation in the thoroughbred industry would
continue.
Limited Operating History and Revenues, Competition. The Company was
organized on July 18, 1995 and its revenues to date have been limited. From
inception in July, 1995 to December 31, 1998, the Company received total
revenues of $247,171. The Company owns a limited number of racing prospects
and accordingly, revenues will remain limited for the foreseeable future. The
Company also faces substantial competition from larger, well-established
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entities with greater financial and personnel resources than the Company.
Limited Capitalization and Working Capital. Capitalization of the Company
is limited and the Company experiences a continuing need for working capital.
At December 31, 1998, the Company had working capital of $25,998, consisting of
current assets of $58,309 and current liabilities of $32,311. Financing to
date includes proceeds of equity sales in the approximate amount of $467,000,
together with limited short-term loans from officers and directors of the
Company. The Company has generally been unable to attract substantial working
capital, and, coupled with its lack of profitability, continues to require
funds from outside sources to continue as a going concern. Management does not
believe the Company is a candidate for conventional debt financing, as assets
and operations are limited. Accordingly, the Company remains dependent on the
proceeds of future debt or equity financing to obtain additional working
capital.
Dependance On Key Personnel. Future success of the Company continues to
depend on the participation of certain of its officers and key consultants.
Messrs. Raymond E. McElhaney and Bill Conrad, president and vice president of
the Company respectively, are responsible for management of the day-to-day
operations and strategic direction of the Company. These individuals currently
devote part-time to the affairs of the Company. Thoroughbred trainers retained
by the Company to oversee training and racing of the Company's thoroughbreds,
serve the Company on a month-to-month basis. Loss of the services of any of
these individuals could adversely affect the conduct of the Company's business.
In such event, the Company would be required to obtain additional personnel to
manage and operate the Company and/or oversee its thoroughbreds, and there
would be no assurance that the Company would be able to employ a suitable
replacement or that a replacement could be obtained on terms which are
favorable to the Company. The Company currently maintains no key-man life
insurance on the lives of any of its officers or directors.
Limited Trading Market For the Company's Common Stock. The Company's
Common Stock is traded in the over-the-counter market and quoted in the
Bulletin Board maintained by the National Association of Securities Dealers,
Inc. Although there presently exists a public market for the Company's Common
Stock, there can be no assurance that such a market can be sustained. Trading
in the Company's Common Stock historically has been limited. During the 12
month period ended March 31, 1999, the Company's Common Stock traded an average
of 200 shares per day. In addition to the Company's limited operations, this
limitation may derive from rules relating to securities which are not quoted in
Nasdaq or traded on recognized securities exchanges which securities are
referred to as "penny stocks."
Penny Stock Regulation. Broker-dealer practices in connection with
transactions in "Penny Stocks" are regulated by certain penny stock rules
adopted by the Securities and Exchange Commission. Penny stocks generally are
equity securities with a price of less than $5.00 (other than securities
registered on certain national securities exchanges or quoted on the NASDAQ
system). The penny stock rules require a broker-dealer, prior to a transaction
in a penny stock not otherwise exempt from the rules, to deliver a standardized
risk disclosure document that provides information about penny stocks and the
risk associated with the penny stock market. The broker-dealer must also
provide the customer with current bid and offer quotations for the penny stock,
the compensation of the broker-dealer and its salesperson in the transaction,
and monthly account statements showing the market value of each penny stock
held in the customer's account. In addition, the penny stock rules generally
require that prior to a transaction in a penny stock, the broker-dealer must
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make a written determination that the penny stock is a suitable investment for
the purchaser and receive the purchaser's written agreement to the transaction.
These disclosure requirements may have the effect of reducing the level of
trading activity in the secondary market for a stock that is subject to the
penny stock rules, such as those of the Company.
Limitation on Share Ownership. Existing regulations governing
thoroughbred racing in various states may limit the ability of individuals and
entities to acquire and retain Common Stock of the Company. Such provisions
are designed to regulate ownership and control of corporations engaged in
thoroughbred racing. Applicable statutes provide that ownership of a
substantial portion of Common Stock, generally greater than 5 or 10% of the
outstanding equity in a corporation, must be approved by the racing commission
in those jurisdictions and submit to background checks regarding financial
history and criminal record. In order to comply with these regulations, the
Company's Articles of Incorporation, as amended, contain a provision requiring
shareholders to sell their stock to the Company in the event such individuals
or entities fail or refuse to become licensed where such license may be
required. The purchase price for shares of Common Stock subject to this
provision is based on the prevailing market price of the Common Stock at the
time of repurchase. The effect of such provisions may be to discourage
acquisition of large blocks of the Company's Common Stock and depress the price
of the Company's stock.
Risks Related to Thoroughbred Racing. The business of training and
racing thoroughbreds is a high-risk venture. There is no assurance that any
thoroughbred acquired by the Company will possess qualities of a championship
character. While a thoroughbred may have an excellent bloodline, there is no
assurance that the racing performance of the thoroughbred will conform to the
bloodline. Moreover, thoroughbreds are subject to injury and disease which can
result in forced retirement from racing, or at the extreme, natural death or
euthanasia of the animal. There can be no assurances that the value of the
thoroughbreds which are owned by the Company or may be acquired in the future
will not decrease or that the Company will not subsequently incur losses on the
racing careers or sale or other disposition of any or all of the thoroughbreds.
Thoroughbred Racing Business. Thoroughbred racing is extremely speculative
and expensive. When the Company thoroughbreds are transported to various
tracks and training centers throughout the United States, and thus exposed to
many other horses in training, the risk of injury or death increases
significantly. The Company's thoroughbreds must earn enough through racing to
cover expenses of boarding and training. If the Company thoroughbreds are
unsuccessful in racing, their value will be adversely affected, as will the
shareholders' investment therein. Furthermore, revenues from racing are
dependent upon the size of the purses offered. The size of the purses depends
in general on the extent of public interest in thoroughbred racing, and in
particular on the relative quality of the specific horses in contention in any
specific meeting or race. Although public interest has been strong in recent
years, there is no assurance that public interest will remain constant, much
less increase. Legalized gambling proliferating in many states threatens to
curtail interest in horse racing as a means of recreation. In addition, there
is no assurance that the Company Thoroughbreds will be of such quality that
they may compete in any races which offer purses of a size sufficient to cover
the Company's expenses.
Lack of Dividends. The Company has paid no dividends on its Common Stock
to date, and there are no plans to pay any in the foreseeable future. Initial
earnings which the Company may realize, if any, will be retained to finance
growth of the Company. Any future dividends, of which there can be no
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assurance, will be directly dependent upon the earnings of the Company, its
financial requirements and other factors.
Possible Rule 144 Sales and Market Overhang. A substantial portion of the
shares Common Stock presently outstanding are "restricted securities" within
the meaning of the Securities Act and may hereafter be sold in compliance with
Rule 144 promulgated thereunder. Rule 144 provides, among other things, and
subject to certain limitations, that a person holding restricted securities for
a period of one year may sell, every three months, those securities in
brokerage transactions in an amount equal to 1% of the Company's outstanding
Common Stock or the average weekly trading volume during the four weeks
preceding the sale, whichever amount is greater. After two years, holders of
restricted stock who are not affiliates of the Company may apply to sell all
restricted stock free of restrictions. Possible sales of the Company's Common
Shares pursuant to Rule 144 may, in the future, have a depressive effect on the
price of the Company's Common Stock.
Government Regulation of Racing. The racing future of and/or market for
the Company's Thoroughbreds depends upon continuing governmental acceptance of
thoroughbred racing as a form of legalized gambling. In the opinion of
management, thoroughbred racing is gaining a greater governmental acceptance
and a dependence as a source of revenue. However, at any time, thoroughbred
racing could be subjected to restrictive regulation or banned entirely. The
value of the Company's Thoroughbreds would be substantially diminished by any
such regulation or ban.
Thoroughbred racing is regulated in various states and foreign countries
by racing regulatory bodies with which the owners of thoroughbred racehorses
must be licensed. In addition, many regulatory bodies require the licensing of
a stable name for owners racing their racehorses under such a designation. All
of the current officers, directors and principal shareholders are currently
licensed as owners by the States of Colorado, Iowa, Illinois, Ohio, Indiana and
Kentucky racing commissions. As a result of these current licenses, the lack of
any disciplinary actions against these individuals, and their reputation within
the industry, management does not anticipate any obstacles to registration in
other states. However, there is no assurance that necessary registrations can
be completed.
THE COMPANY
Wallstreet Racing Stables, Inc. owns and races a number of thoroughbred
race horses. The Company was organized under the laws of the State of Colorado
on July 18, 1995. Since that date, it has acquired a stable of thoroughbreds
and currently trains and races those horses at various locations throughout the
United States.
All of the Company's thoroughbreds are boarded and trained by independent
third parties. The Company pays a daily rate for each horse depending upon the
services required of the boarding or training facility and expertise and
reputation of the trainer. The Company maintains its executive and
administrative offices in Colorado Springs at 5525 Erindale Drive, Suite 201,
Colorado Springs, Colorado 80918.
SELLING SHAREHOLDERS
The Selling Shareholders consists of all persons to whom Shares may be
issued under the Plan and who are directors or executive officers of the
Company and are therefore deemed to be affiliates for purposes of Rule 144
promulgated pursuant to the Securities Act. As of the date of this Prospectus,
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none of these individuals have been identified. If options or Shares are
granted to Selling Shareholders in the future, a Prospectus Supplement will be
filed amending this information and naming such individuals.
PLAN OF DISTRIBUTION
All of the Shares offered hereby would be sold for the accounts of the
Selling Shareholders. The Company would not receive any of the proceeds from
the sale of the Shares.
The Company has been advised that the Shares may be sold from time to time
by the Selling Shareholders, or by any pledgee or other successor in interest
to the Selling Shareholders, in regular brokerage transactions on a national
securities exchange or in the over-the-counter market, in transactions directly
with market makers, in privately negotiated transactions, or through a
combination of such methods at fixed prices (which may be changed), at market
prices prevailing at the time of sale, or at negotiated prices.
The Selling Shareholders, or any pledgee or other successor in interest,
may effect such transactions by selling Shares to or through broker-dealers,
and such broker-dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholders, any pledgee or other
successor in interest, or the purchasers of Shares for whom such broker-dealers
may act as agent, or to whom they sell as principal, or both which
compensation, as to a particular broker-dealer, may be in excess of customary
commissions. The Selling Shareholders and any such underwriters, dealers or
agents that participate in the distribution of the Shares may be deemed to be
underwriters within the meaning of the Securities Act, and any profit on the
sale of the Shares by them and any discounts, commissions or concessions
received by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriters, dealers and agents may engage
in transactions with, and perform services for, the Company.
Certain expenses in connection with the registration of the Shares under
the Securities Act, including fees and expenses of the Company's counsel and
accountants, filing fees and printing expenses, will be borne by the Company.
Each Selling Shareholder will bear his or her own legal and accounting
expenses, if any, as well as all transfer taxes, discounts, concessions,
commissions or other compensation paid to broker-dealers.
Any Shares that qualify for resale pursuant to Rule 144 promulgated under
the Securities Act may be sold under the Rule rather than pursuant to this
Prospectus.
There can be no assurance that the Selling Shareholders will sell any or
all of the Shares covered by this Prospectus.
EXPERTS
The audited balance sheet of the Company as of June 30, 1998, statement of
operations, changes in shareholder's equity and cash flows for the fiscal years
ended June 30, 1998 and 1997 included in the Company's Annual Report on Form 10-
KSB, incorporated by reference in this Registration Statement and Prospectus,
have been incorporated herein in reliance on the report of Kish, Leake and
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Associates, independent public accounts, given on the authority of that firm as
experts of accounting and auditing.
LEGAL MATTERS
The validity of the Common Stock offered hereby has been passed upon for
the Company by Overton, Babiarz & Sykes, P.C., Englewood, Colorado. David J.
Babiarz, a member of that firm, individually and through a partnership in which
he is the general partner, owns an aggregate of 22,500 shares of the Company's
Common Stock.
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PART II
Information required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed by Wallstreet Racing Stables, Inc. (the
"Company" or the "Registrant") with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein
by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1998 (File No. 0-23823);
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1998 (File No. 0-23823);
(c) The Company's Quarterly Report on Form 10-QSB for the quarter ended
December 31, 1998 (File No. 0-23823); and
(d) The description of the Common Stock contained in the Company's Form
8-A dated February 19, 1998.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act, as amended, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
thereof from the date of the filing of such documents.
Item 4. Description of Securities
All of the securities being registered are registered under Section
12 of the Exchange Act.
Item 5. Interest of Named Experts and Counsel
Included in the Prospectus.
Item 6. Indemnification of Directors and Officers
Section 7-109-103 of the Colorado Business Corporation Act (the "Act")
provides that a corporation organized under Colorado law shall be required to
indemnify a person who is or was a director of the corporation or an individual
who, while serving as a director of the corporation, is or was serving at the
corporation's request as a director, officer, partner, trustee, employee or
fiduciary or agent of another corporation or other entity or of any employee
benefit plan (a "Director") or officer of the corporation and who was wholly
successful, on the merits or otherwise, in defense of any threatened, pending,
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or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal (a
"Proceeding"), in which he was a party, against reasonable expenses incurred by
him in connection with the Proceeding, unless such indemnity is limited by the
corporation's articles of incorporation.
Section 7-109-102 of the Act provides, generally, that a corporation may
indemnify a person made a party to a proceeding because the person is or was a
Director against any obligation incurred with respect to a Proceeding to pay a
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan) or reasonable expenses incurred in the
Proceeding if the person conducted himself or herself in good faith and the
person reasonably believed, in the case of conduct in an official capacity with
the Corporation, the person's conduct was in the corporation's best interests
and, in all other cases, his or her conduct was at least not opposed to the
corporation's best interests and, with respect to any criminal proceedings, the
person had no reasonable cause to believe that his or her conduct was unlawful.
A corporation may not indemnify a Director in connection with any Proceeding by
or in the right of the corporation in which the Director was adjudged liable to
the corporation or, in connection with any other Proceeding charging the
Director derived an improper personal benefit, whether or not involving actions
in an official capacity, in which Proceeding the Director was judged liable on
the basis that he or she derived an improper personal benefit. Any
indemnification permitted in connection with a Proceeding by or in the right of
the corporation is limited to reasonable expenses incurred in connection with
such Proceeding. Under Section 7-109-107 of the Act, unless otherwise provided
in the articles of incorporation, a corporation may indemnify an officer,
employee, fiduciary, or agent of the corporation to the same extent as a
Director and may indemnify an officer, employee, fiduciary, or agent who is not
a director to a greater extent, if not inconsistent with public policy and if
provided for by its bylaws, general or specific action of its board of
directors or shareholders, or contract.
The Company's Articles of Incorporation provide for indemnification of
directors and officers to the full extent permitted under Colorado law. The
Company may also, but is not obligated to, indemnify any person who is or was
an officer, agent or employee of the Company to a greater extent than a
director.
Section 7-108-402 of the Act provides, generally, that the articles of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director; except that any such
provision may not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its
shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) acts specified in
ss. 7-108-403, or (iv) any transaction from which a director directly or
indirectly derived an improper personal benefit. Such provision may not
eliminate or limit the liability of a director for any act or omission
occurring prior to the date on which such provision becomes effective.
The Company's Articles of Incorporation limit director's liability to the
Company or its stockholders for monetary damages for breach of fiduciary duty
as a director to the fullest extent permitted by Colorado law.
II - 2
<PAGE>
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Exhibit Index and Exhibits at the end of this Registration
Statement.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are bing made, a
post-effective amendment to this registration statement to include any
additional or changed material information with respect to the plan of
distribution not previously disclosed in the registration statement;
(2) For the purpose of determining any liability under the Securities Act
of 1933, to treat each such post-effective amendment as 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; and
(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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) and each filing of the annual report of the Plan
pursuant to Section 15(d) of the Securities Exchange Act of 1934 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II - 3
<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 the requirements for filing on Form S-8 and has duly caused this
Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the County of El Paso, State of
Colorado on the 6th day of May, 1999.
WALLSTREET RACING STABLES, INC.
By: /s/ Raymond E. McElhaney
----------------------------------------
Raymond E. McElhaney, President, Chief
Executive Officer and Chief Financial
Officer
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Raymond E. McElhaney and Bill Conrad, and each
of them, his true and lawful attorneys-in-fact and agents, each with the full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, 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, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as each of us might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, or their 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 Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Raymond E. McElhaney President, Chief Executive May 6, 1999
- ------------------------- Officer, Chief Financial -----------
Raymond E. McElhaney Officer and Director
/s/ Bill Conrad Vice-President, Secretary May 6, 1999
- ------------------------ Treasurer, Chief Accounting -----------
Bill Conrad Officer and Director
/s/ Ronald McGinnis Vice-President and Director May 6, 1999
- ------------------------ -----------
Ronald McGinnis
<PAGE>
Exhibit No. Description
- ----------- -----------
5 Opinion of Overton, Babiarz & Sykes, P.C. regarding
the legality of the securities registered hereunder
23.a Consent of Kish, Leake and Associates
23.b Consent of Overton, Babiarz & Sykes, P.C. (included in
Exhibit 5)
24 Power of Attorney (included in the signature page to this
Registration Statement)
<PAGE>
EXHIBIT 5
Consent of Overton, Babiarz & Sykes, P.C
<PAGE>
OVERTON, BABIARZ & SYKES, P.C.
ATTORNEYS AT LAW
DENVER TECH CENTER
7720 EAST BELLEVIEW AVENUE, SUITE 200
ENGLEWOOD, COLORADO 80111
(303) 779-5900
Facsimile (303) 779-6006
DAVID J. BABIARZ
April 30, 1999
Wallstreet Racing Stables, Inc.
5525 Erindale Drive, Suite 201
Colorado Springs, Colorado 80918
Re: Registration Statement on Form S-8 (SEC File No.___)
Covering Public Offering of 1,000,000 Shares of Common Stock.
-------------------------------------------------------------
Gentlemen:
We have acted as counsel to Wallstreet Racing Stables, Inc., a
Colorado corporation (the "Company"), in connection with the registration
by the Company of the aggregate of 1,000,000 shares of Common Stock, par
value $.001 per share, reserved for issuance under the Company's
Non-Qualified Stock Option and Stock Grant Plan (the "Plan"), all as more
fully set forth in the Registration Statement on Form S-8 to be filed by
the Company on or about May 3, 1999.
In such capacity, we have examined, among other documents, the
Articles of Incorporation, as amended, Bylaws and minutes of meetings of
its Board of Directors and shareholders and the Plan.
Based on the foregoing, and subject to such further examinations as
we have deemed relevant and necessary, we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the State of Colorado.
2. The Shares have been duly authorized under the Articles of
Incorporation, as amended, of the Company and the Common Shares to be
issued under the Plan, when issued under the Plan, will be duly and
validly issued, full paid and nonassessable.
<PAGE>
Wallstreet Racing Stables, Inc.
April 30, 1999
Page 2
We hereby consent to the use of our name and the references to
Overton, Babiarz & Sykes, P.C. beneath the caption "Opinion of Counsel"
in the Prospectus forming a part of the Registration Statement
to the filing of a copy of this opinion as Exhibit No. 5 thereto.
Sincerely,
/s/ Overton, Babiarz & Sykes, P.C.
OVERTON, BABIARZ & SYKES, P.C.
<PAGE>
EXHIBIT 23.a
Consent of Kish, Leake & Associates
<PAGE>
Kish, Leake & Associates, P.C.
Certified Public Accountants
J.D. Kish, C.P.A., M.B.A. 7901 E. Belleview Ave., Suite 220
James D. Leake, C.P.A., M.T. Englewood, Colorado 80111
------------------------ Telephone (303) 779-5006
Arleen R. Brogan, C.P.A. Facsimile (303) 779-5724
CONSENT OF INDEPENDENT CERTIFIED ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in the Form S-8 registration statement of our report dated August 28,
1998 included in Wallstreet Racing Stables, Inc. Form 10-KSB for the year ended
June 30, 1998 and to all references to our Firm included in this registration
statement.
Kish, Leake & Associates, P.C.
/s/ Kish, Leake & Associates, P.C.
Englewood, Colorado
May 3, 1999
