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As filed with the Securities and Exchange Commission on May 25, 1999
Registration No. 333-
-------
SECURITIES AND EXCHANGE COMMISSION
- --------------------------------------------------------------------------------
Washington. D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED
----------------------
FULL TILT SPORTS, INC.
(Exact name of registrant as specified in its charter)
Colorado 2253 84-1416864
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
5525 Erindale Drive, Suite 200, Colorado Springs, Colorado 80918
(719) 535-0260
(Address and telephone number of registrant's principal executive offices and
place of business)
NON-QUALIFIED STOCK OPTION AND STOCK GRANT PLAN
CONSULTANT AGREEMENT
(Full title of the plans)
Roger K. Burnett,
President
Full Tilt Sports, Inc.
5525 Erindale Drive, Suite 200
Colorado Springs, Colorado 80918
(719) 535-0260
(Name and address and telephone number of agent for service)
--------------------------------
Copies of all communications, including all communications sent to the agent
for service, should be sent to:
David J. Babiarz, Esq.
Neil P. Movitz, Esq.
Overton, Babiarz & Sykes, P.C.
7720 E. Belleview Avenue
Building 46-B, Suite 200
Englewood, CO 80111
(303) 779-5900
<TABLE>
<CAPTION>
---------------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------
Title of Proposed Proposed aggregate Amount of
securities to Amount to be maximum offering offering price(1) registration
be registered registered price per share(1) fee(1)
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares,
$.001 par value
per share 2,680,000 $3.625 $9,715,000 $2,700.77
- ------------------------------------------------------------------------------------
(1) Based upon the average of the bid and asked prices for the Company's Common
Stock on May 24, 1999, as required by Rule 457(h)(1).
</TABLE>
<PAGE>
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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P R O S P E C T U S
- - - - - - - - - - -
FULL TILT SPORTS, INC.
Common Stock,
$.001 par value per share
---------------------
This Prospectus may be used in connection with the offering, from time to
time, by certain shareholders (the "Selling Shareholders") of Full Tilt Sports,
Inc. (the "Company"), of up to 2,500,000 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 currently traded in the over-
the-counter market and are quoted on the NASD Bulletin Board under the symbol
"FTSX". On May 24th, 1999 the closing high bid and low asked prices of the
Common Stock as reported in the Bulletin Board was $3.25 and $4.00,
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 25, 1999.
<PAGE>
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
Limited Operating History and Revenues.........................5
Limited Trading Market For the Company's Common Stock..........5
Penny Stock Regulation.........................................6
Limited Capitalization and Working Capital.....................6
Shares Eligible for Sale.......................................6
Intense Competition............................................7
Lack of Assured Source of Production...........................7
Lack of Assurance of Additional Retail Outlets.................7
No Assurance of Trademark Protection...........................7
Dependance on Professional Athlete Endorsements................8
Dependance on Key Personnel; Lack of Operating Experience......8
Lack of Dividends..............................................8
Preferred Stock Outstanding....................................8
Regulation on Secondary Trading................................9
THE COMPANY.........................................................9
SELLING SHAREHOLDERS................................................9
PLAN OF DISTRIBUTION...............................................10
EXPERTS............................................................11
LEGAL MATTERS......................................................11
3
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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
December 31, 1998 (File No. 0-24829);
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1999 (File No. 0-24829); and
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 10-SB dated August 24, 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
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
4
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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 Full Tilt
Sports, Inc., 5525 Erindale Drive, Suite 200, Colorado Springs, Colorado 80918,
telephone: (719) 535-0260, attention: Roger K. Burnett, 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.
1. Limited Operating History and Revenues. The Company was organized on
June 30, 1997, and has a very limited operating history and very limited
revenues. Activities to date have been limited to designing, ordering and
distributing in a very limited manner the Apparel Line, obtaining endorsement
agreements with athletes, organizational efforts and obtaining financing.
Activities have also included delivering the Company's first order for
inventory, and its products are currently offered for sale by one Colorado
retailer with multiple stores. The Company must be considered in the
development stage and in the very early phases of its development, embarking
upon a new venture. Prospective investors should be aware of the difficulties
encountered by such enterprises, as the Company faces all the risks inherent in
any new business, including the absence of any prior operating history, need
for working capital, lack of market recognition and intense competition. The
likelihood of success of the Company must be considered in light of such
problems, expenses and delays frequently encountered in connection with the
operation of a new business and the competitive environment in which the
Company will be operating.
2. Limited Trading Market For the Company's Common Stock. Although
there presently exists a public market for the Company's Common Shares, there
can be no assurance that such a market can be sustained. The investment
community could show little or no interest in the Company in the future. The
Company's Common Shares are currently traded in the over-the-counter market and
are quoted on the Bulletin Board maintained by the NASD. During the period
from March 8, 1999, when the Company commenced trading, until May 24th, 1999
5
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the date of the most recent sale as of the date of this Prospectus, the average
amount of shares traded was 3200 per day. Many broker-dealers acting as market
makers for securities traded in the over-the-counter market have ceased trading
securities which are not listed in Nasdaq. This concern arises from new rules
relating to securities which are not quoted on Nasdaq, which securities are
referred to as "penny stocks." Failure of the Company to achieve listing in
Nasdaq will likely affect the trading market for its Common Shares in the
future.
3. 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
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 becomes subject to
the penny stock rules. If the Company's securities become subject to the penny
stock rules, investors in this offering may find it more difficult to sell
their securities.
4. Limited Capitalization and Working Capital. The Company has
extremely limited capitalization and is dependent on the Company achieving
profitable operations and receipt of additional financing to continue as a
going concern. Prior to the date of this Prospectus, the Company has received
approximately $620,000 from investors. This amount does not include sales of
stock to the founding shareholders, officers and directors. This amount has
been budgeted for a limited period of time and the Company will likely require
additional capital from outside sources. If the Company obtains a substantial
order, it may require substantial working capital to finance inventory
production and accounts receivable. The Company does not expect this to be a
problem since deposits are typically received from retailers for large orders,
which will decrease the demand for working capital to purchase these orders.
Although the Company will endeavor to finance its working capital needs through
additional debt or equity financing, there is no assurance that this financing
can be obtained on terms acceptable to the Company. The Company does not
consider itself a candidate for conventional bank financing due to limited
assets and operating history.
5. Shares Eligible for Future Sale. Prior to the date of this
Prospectus, the Company has registered an additional 861,653 shares of Common
Stock for sale by other selling shareholders. These shares may be sold at any
time. Further, the Company has reserved 105,700 shares of Common Stock
underlying outstanding warrants, and 50,000 shares underlying Preferred Stock,
all of which may be issued and sold at any time. Finally, an aggregate of
3,253,351 shares are owned by officers and directors of the Company, and may be
sold in the future under Rule 144 of the Securities Act. Do to the limited
trading market for the Common Stock, sale of any of these shares in the future
could depress the price of the Common Stock and adversely affect sales by
shareholders in the future.
6
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6. Intense Competition. Competition in the apparel industry is intense.
Success is often based on the recognition of a manufacturer's name or trademark
or relationships between manufacturers and retailers. As the Company is a new
entrant in the apparel industry, it has not yet developed name recognition or
distribution relationships. The Company's marketing concept, based upon a
perceived attitude encompassed in its trademark, is not unique and the Company
must expend substantial resources to establish itself as a desirable line of
apparel in a competitive market. The Company's business plan envisions
expediting this development through endorsement arrangements with professional
athletes. However, as these relationships are newly established, there is no
assurance the Company's plan will be successful. The Company is only beginning
discussions with established retailers to market and distribute its product
line. Due to the Company's status as a development stage enterprise, the
Company is at a competitive disadvantage with regard to market recognition,
financial and personnel resources, compared to its competitors.
7. Lack of Assured Source of Production. In order to obtain an initial
inventory of apparel items, the Company has contracted with independent third
parties for production and labeling to its specifications. Due to constraints
on working capital, the Company has ordered such items in limited quantities,
and has no long-term contract for the production of such items. Items ordered
by the Company are generally of standard design and color, distinguished by the
Company's logo and labels. While management believes that the Company will
have a ready source of materials and manufacturers for its apparel items, there
is no assurance that such inventory can be acquired at desired costs and
quality standards. The Company has only ordered in very limited quantities to
date, and delivery of future merchandise will be subject to financing and
production schedules of the manufacturers. The lack of a long-term contract
and business relationship with current sources of supply present a risk that
the Company may not be able to acquire future inventory to meet demand.
8. No Assurance of Additional Retail Outlets. The Company's plan of
operation contemplates distribution of its apparel items through retail
outlets, such as department stores and sporting goods stores located on the
front range of Colorado. The Company currently has a firm commitment for
distribution with one retailer with multiple stores in Colorado and this
retailer has commenced sale of the Company's products. Although the Company
has discussed preliminary arrangements for distribution with a number of other
retail outlets, it currently has no other firm commitments or contracts for
that purpose, except as stated above. As a result, there is no assurance that
the Company will have an assured source of distribution for its products. In
addition, due to the recent entry of the Company into the retail clothing
market, retailers may be reluctant to accept its product pending future
demonstration of success.
9. No Assurance of Trademark Protection. The Company has developed the
word and logo trademark "FTS" and "Flip The Switch" with stylized lettering
that they believe portrays an aggressive sports attitude in order to capitalize
on the popularity of similar sports slogans. The value of the Apparel Line
will depend to a large degree on name recognition of the Company's trademark,
and a substantial effort has been made to exploit the name in marketing the
Company's products. Although the Company has taken what it believes are
appropriate steps to ensure that these trademarks will be protected and not
challenged, including use of the trademark in interstate commerce, applying for
federal trademark registration with the U.S. Patent and Trademark Office and
registering the trademark with the Colorado Department of State, there is no
assurance that other prior users of the trademark do not exist. If a prior
user exists, that user may request a court-ordered injunction prohibiting the
Company's use of the trademark in that locale in a manner that conflicts with
7
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the prior user. There is no assurance that registration will be granted and
the Company cannot guarantee that a challenge will not arise in the future to
the use of the trademark in a particular location.
10. Dependence on Professional Athlete Endorsements. Acceptance of the
Apparel Line will depend to a large degree on the uniqueness and strength of
the Company's trademark and concept, anticipated to be provided by endorsement
and exposure by high profile professional athletes. These endorsements are
expected to give the Company an advantage to compete in the apparel industry.
Toward that end, the Company has recently entered into agreements with three
members of the Denver Broncos Football Team, a well known former professional
baseball player and a professional boxer to provide endorsement and advertising
on the Company's behalf. These agreements provide for appearances, television
and print advertising and other forms of marketing and public relations on the
Company's behalf and will continue through calendar year 1999. As the Company
has only recently entered into such agreements, the impact on recognition of
the Company's name and product remains unknown. However, the Company will
undertake efforts to exploit these arrangements in the immediate future.
Management also anticipates efforts to obtain contracts with additional high-
profile athletes in the same and other sports.
11. Dependence on Key Personnel; Lack of Operating Experience. Due in
part to its lack of operating history, success of the Company will depend upon
the management efforts and expertise of certain of its officers and directors
especially, Messrs. Roger Burnett and Joseph DeBerry. These individuals will
be responsible for overseeing the production and distribution of the Apparel
Line, operation of the business and expansion into additional markets.
However, such individuals have little experience in the operation of a business
such as that of the Company. Both of these individuals are former members of
professional baseball organizations and have spent a majority of their adult
life participating in baseball. Messrs. Burnett and DeBerry may retain the
services of outside consultants to assist in management and operation of the
business where appropriate. While management believes it has the requisite
expertise to operate the Company's business, there is no assurance that those
efforts will result in profit to the Company. Further, the loss of any of
these individuals could adversely effect the conduct of the Company's business.
The Company does not intend to obtain key man insurance on the life of any of
its officers or directors.
12. 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
assurance, will be directly dependent upon the earnings of the Company, its
financial requirements and other factors.
13. Preferred Stock Outstanding. The Articles of Incorporation of the
Company authorized the issuance of a maximum of 5,000,000 shares of preferred
stock, par value $.01 per share. The Company recently authorized 150,000
Series A Preferred Shares, of which 50,000 shares have been issued. The Series
A Preferred Shares carry a cumulative, preferred dividend of 10% for the first
two years, following which the holders are entitled to 3.75% of the net profits
of the Company during years three to five. The Series A Preferred Shares are
also convertible into the shares of the Company's Common Stock on a one-to-one
basis at the option of the holder until the fifth anniversary of the date of
issuance, following which the Series A Preferred Shares convert automatically.
Profit sharing and dividend privileges inuring to the holder of the Series A
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Preferred Shares will operate to the disadvantage of holders of the Company's
Common Stock so long as Series A Preferred Shares are outstanding. Moreover,
the Company has the ability to issue additional shares of Preferred Stock in
the future, which terms may include preferences as to voting, dividends and
distributions on liquidation.
14. Regulation on Secondary Trading. In order to enhance the ability of
Company shareholders to trade the Common Shares in any secondary market which
might develop, management published information in Standard & Poor's Corporation
Records. Statutes or regulations in most states permit trading in the secondary
market for the securities of any entity published in a recognized securities
manual. The Company hopes to avail itself of the benefits of that exemption
in any secondary market which might develop. However, there is no assurance
that such publication will be achieved or that a secondary market will in fact
develop.
The Company has registered or qualified the sale of its Common Shares only
in the State of Colorado. Accordingly, investors may have difficulty selling
their securities outside that state, should they desire to do so.
THE COMPANY
Full Tilt Sports, Inc. manufactures and distributes an apparel line of
sportswear capitalizing on its logo and trademarks. The Company was organized
under the laws of the State of Colorado on June 30, 1997. Since that date, it
has had manufactured an inventory of its products, has marketed its products
through advertisement and endorsements by professional athletes, and has
distributed its products in a limited manner through personal distribution by
management and through retail outlets primarily in Colorado.
All of the Company's products are manufactured by independent third
parties. The Company currently has a distribution agreement with one retailer
with 13 outlets in Colorado and outlets in Arizona and Wyoming, and has
endorsement contracts with five professional athletes. The Company maintains
its executive and administrative offices in Colorado Springs at 5525 Erindale
Drive, Suite 200, 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. The following table sets forth,
as of May 24th, 1999: (i) the name of each Selling Shareholder, (ii) his
position with the Company and its predecessor or affiliates, over the last
three years, (iii) the number of Shares of Common Stock beneficially owned by
each Selling Shareholder as of that date, (iv) the number of Shares of Common
Stock issued or issuable under the Plan to each Selling Shareholder based on
Options or grants at that date, which is also the number of shares covered by
this Prospectus that may be sold for the account of such Selling Shareholder,
and (v) the number of Shares and percentage of class that would be owned by
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each Selling Shareholder if all such registered Shares were issued to and sold
by the Selling Shareholder. If Options or Shares are granted to additional
Selling Shareholders in the future, a Prospectus Supplement will be filed
amending the table. None of the Selling Shareholders named in the table has had
any position, office or other material relationship within the past three years
with the Company or any of its predecessors or affiliates, other than as
described below.
Name and Position Number Number of Percentage of
- ----------------- ------ --------- -------------
of Shares Shares Covered Ownership
--------- -------------- ---------
Beneficially By This After Offering
------------ ------- --------------
Owned Prospectus is Completed
----- ---------- ------------
Roger K. Burnett 877,618 200,000 17.42%
President, Chief Executive
Officer, Chief Financial Officer
and Director
Joseph F. DeBerry 862,618 200,000 17.03%
Vice President, Secretary,
Treasurer and Director
J. Fisher DeBerry 825,000 25,000 21.53%
Executive Vice President
and Director
Bill M. Conrad 449,591 200,000 6.41%
Director
Raymond E. McElhaney 238,524 25,000 5.75%
Director
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,
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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 December 31, 1998,
statement of operations, changes in shareholder's equity and cash flows for the
fiscal year ended December 31, 1998 and the period June 30, 1997 (inception)
through December 31, 1998 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
Associates, P.C. 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 10,000 shares of the Company's
Common Stock.
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<PAGE>
PART II
Information required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed by Full Tilt Sports, 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
December 31, 1998 (File No. 0-24829);
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 1999 (File No. 0-24829); and
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 10-SB dated August 24, 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 registers
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, 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.
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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.
Item 7. Exemption from Registration Claimed
Not applicable.
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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.
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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 25th day of May, 1999.
FULL TILT SPORTS, INC.
By: /s/ Roger K. Burnett
----------------------------------
Roger K. Burnett, President, Chief Executive
Officer, Chief Financial Officer and Chairman of
the Board
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement or Amendment thereto has been signed by the
following persons in the capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Roger K. Burnett
- ------------------------ President, Chief Executive Officer, May 25, 1999
Roger K. Burnett Chief Financial Officer and Chairman ------------
of the Board of Directors
/s/ J. Fisher DeBerry Executive Vice President and Director May 25, 1999
- ------------------------ ------------
J. Fisher DeBerry
/s/ Joseph F. DeBerry Vice President, Secretary, Treasurer May 25, 1999
- ------------------------ and Director ------------
Joseph F. DeBerry
/s/ Bill M. Conrad Director May 25, 1999
- ------------------------ ------------
Bill M. Conrad
/s/ Raymond E. McElhaney Director May 25, 1999
- ------------------------ ------------
Raymond E. McElhaney
<PAGE>
Exhibit No. Description
- ----------- -----------
5 Opinion of Overton, Babiarz & Sykes, P.C. regarding
the legality of the securities registered hereunder
15 Not Applicable
23.a Consent of Kish, Leake & Associates
23.b Consent of Overton, Babiarz & Sykes, P.C. (included in
Exhibit 5)
24 Not Applicable
<PAGE>
EXHIBIT 5
Opinion 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
May 21, 1999
Full Tilt Sports, Inc.
5525 Erindale Drive, Suite 200
Colorado Springs, Colorado 80918
Re: Registration Statement on Form S-8 (SEC File No. 33____)
Covering Public Offering of 2,680,000 Shares of Common Stock.
-------------------------------------------------------------
Gentlemen:
We have acted as counsel to Full Tilt Sports, Inc., a
Colorado corporation (the "Company"), in connection with the
registration by the Company of aggregate of 2,680,000 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") and under the Consultant Agreement with
Majestic West Custom Embroidery and Screenprinting , all as more
fully set forth in the Registration Statement on Form S-8 to be
filed by the Company on May 24, 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 Common 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>
We hereby consent to the use of our name and to the
references to Overton, Babiarz & Sykes, P.C. beneath the caption
"Opinion of Counsel" in the Prospectus forming a part of the
Registration Statement and 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>
<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 PUBLIC ACCOUNTANTS
We have issued our report dated March 29, 1999, accompanying the financial
statements of Full Tilt Sports, Inc. included in the Annual Report on Form
10-KSB for the year ended December 31, 1998 which are incorporated by
reference in this Form S-8 Registration Statement and related Prospectus.
We consent to the incorporation by reference in the Registration Statement
and related Prospectus of the aforementioned reports and to the use of our
name as it appears under the caption "Experts."
Kish, Leake & Associates, P.C.
/s/ Kish, Leake & Associates
Englewood, Colorado
May 24, 1999
