As filed with the Securities and Exchange Commission on September 13, 2000.
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
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WarpRadio.com, Inc.
(Exact name of Registrant as specified in its charter)
----------------
Nevada 87-0538158
-------------------------------- ------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
---------------
6535 South Dayton Street, Suite 3000, Greenwood Village, Colorado 80111
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(Address of principal executive offices) (Zip Code)
1999 Stock Option Plan
----------------------
(Full title of the plan)
Denise Sutton, Chief Executive Officer
6535 South Dayton Street, Suite 3000
Greenwood Village, Colorado 80111
(303) 799-9118
------------------------------------------------------------
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Approximate date of commencement of proposed sale to public: From time to
time after the Registration Statement becomes effective.
---------------------------
Exhibit Index Begins at Page II-5
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================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================
Title of Amount to be Proposed Proposed Amount of
Securities Registered (1) Maximum Maximum Registration
to be Offering Aggregate Fee
Registered Price Per Offering
Security (2) Price (2)
--------------------------------------------------------------------------------
Common Stock, 3,500,000 $1.09 $3,815,000 $1,011
$.001 par value Shares
================================================================================
(1) This Registration Statement, pursuant to Rule 416, covers any
additional shares of no par value Common Stock ("shares") which become issuable
under the 1999 Stock Option Plan ("Plan") set forth herein by reason of any
stock dividend, stock split, recapitalization or any other similar transaction
without receipt of consideration which results in an increase in the number of
shares outstanding.
(2) Estimated solely for the purpose of computing the amount of the
Registration fee under Rule 457 of the Securities Act of 1933, as amended. A
total of 3,500,000 shares are issuable under the Plan at an offering price per
share based upon the closing price of the Common Stock on the Electronic
Bulletin Board on September 8, 2000, of $1.09 per share.
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WarpRadio.com, Inc.
PART I
------
Cross Reference Sheet Required by Item 501
Item in Form S-8 Caption In Prospectus
---------------- ---------------------
1. General Plan Information...............Cover Page; Issuer and Participating
Employees; Description of the Plan;
Tax Consequences
2. Registrant Information and
Employee Plan Annual
Information............................Available Information
3. Incorporation of Documents
by Reference...........................Incorporation by Reference
4. Description of Securities..............Description of the Plan
5. Interests of Named Experts
and Counsel............................Legal Matters
6. Indemnification of
Directors and Officers.................Indemnification of Directors and
Officers--Part II
7. Exemption from Registration
Claimed................................Not Applicable
8. Exhibits...............................Not Applicable (See Part II, Item 8)
9. Undertakings...........................Not Applicable (See Part II, Item 9)
INFORMATION REGARDING THE SECTION 10(a) PROSPECTUS
Pursuant to the requirements of the Note to Part I of Form S-8 and Rule
428(b)(1) of the Rules under the Securities Act of 1933, as amended, the
information required by Part I of Form S-8 is included in the Reoffer Prospectus
which follows. The Reoffer Prospectus together with the documents incorporated
by reference pursuant to Item 3 of Part II of this Registration Statement
constitute the Section 10(a) Prospectus.
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REOFFER PROSPECTUS
The material which follows, up to but not including the page beginning Part
II of this Registration Statement, constitutes a prospectus, prepared on Form
S-3, in accordance with General Instruction C to Form S-8, to be used in
connection with resales of securities acquired under the Registrant's 1999 Stock
Option Plan by directors of the Registrant, as defined in Rule 405 under the
Securities Act of 1933, as amended.
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3,500,000 SHARES
COMMON STOCK
WarpRadio.com, Inc.
---------------
1999 STOCK OPTION PLAN
---------------
This reoffer prospectus relates to the offering by WarpRadio.com, Inc. and
our employees, officers, directors and consultants of up to 3,500,000 shares
(subject to adjustment in certain circumstances) of our $.001 par value common
stock, purchasable by our employees, officers, directors and consultants under
common stock options under our 1999 Stock Option Plan. In May 2000 we filed a
registration statement on Form S-8, including a prospectus, covering 1,000,000
shares reserved for issuance under the plan. In August 2000 we increased the
number of shares reserved for issuance under the plan to 3,500,000 shares, all
of which are being registered by this prospectus. As of the date hereof,
1,733,000 options issued under our plan are outstanding.
---------------
This Prospectus will also be used by our non-affiliates as well as persons
who are "affiliates" (as that term is defined under the Securities Act of 1933)
to effect resales of the shares. We will receive no part of the proceeds of any
such sales although we will receive the exercise price of the options.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------
No person is authorized to give any information or to make any
representation not contained in this prospectus in connection with the offer
made hereby, and, if given or made, such information or representation must not
be relied upon as having been authorized by us. The delivery of this prospectus
at any time does not imply that the information herein is correct as of the time
subsequent to this date.
----------------
The date of this prospectus is September 13, 2000.
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AVAILABLE INFORMATION
---------------------
We are subject to the informational requirements of the Securities Exchange
Act of 1934, as amended, including Sections 14(a) and 14(c) relating to proxy
and information statements, and in accordance therewith file reports and other
information with the Securities and Exchange Commission. Reports and other
information filed by us can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street N.W., Washington,
D.C. 20549; 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; 7
World Trade Center, New York, New York 10048; and 5670 Wilshire Boulevard, Los
Angeles, California 90036. Copies of such material can also be obtained from the
Public Reference Section of the Commission, 450 Fifth Street N.W., Washington,
D.C. 20549 at prescribed rates and on the Commission's website at www.sec.gov.
Our common stock is traded on the Electronic Bulletin Board under the symbol
"WRPR."
We furnish annual reports to our shareholders which include audited
financial statements. We may furnish such other reports as may be authorized,
from time to time, by our Board of Directors.
INCORPORATION BY REFERENCE
Certain documents have been incorporated by reference into this prospectus,
either in whole or in part. We will provide without charge (1) to each person to
whom a prospectus is delivered, upon written or oral request of such person, a
copy of any and all of the information that has been incorporated by reference
(not including exhibits to the information unless such exhibits are specifically
incorporated by reference into the information), and (2) documents and
information required to be delivered to our directors pursuant to Rule 428(b).
Requests for such information shall be addressed to us at 6535 South Dayton
Street, Suite 3000, Greenwood Village, Colorado 80111, (303) 799-9118.
2
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TABLE OF CONTENTS
-----------------
INTRODUCTION................................................................ 4
SELLING STOCKHOLDERS........................................................ 4
METHOD OF SALE.............................................................. 4
SEC POSITION REGARDING INDEMNIFICATION...................................... 5
DESCRIPTION OF THE PLAN..................................................... 5
APPLICABLE SECURITIES LAW RESTRICTIONS...................................... 6
TAX CONSEQUENCES............................................................ 7
LEGAL MATTERS............................................................... 8
EXPERTS ................................................................... 8
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INTRODUCTION
We own and operate an Internet site on the World Wide Web that broadcasts
"streaming" radio station programming 24 hours a day, seven days a week.
Streaming is a new technology that permits the simultaneous transmission and
playback of digitized audio streams over the Internet. We currently offer live,
uninterrupted radio programming from more than 125 radio stations across the
United States, free of charge. Our audience is able to receive local radio
programming online (without the use of a traditional radio) and outside the
listener's geographic area, allowing users to select from dozens of stations and
formats. While listening to our radio programming, users can continue to perform
other tasks on their computers.
SELLING STOCKHOLDERS
This prospectus covers possible sales by our officers and directors, as
well as employees whose names are not included herein, of shares they acquire
through exercise of options granted under the plan. The names of such officers
and directors who may be selling stockholders from time to time are listed
below, along with the number of shares of common stock currently owned by them
and the number of shares offered for sale hereby. The number of shares offered
for sale by such individuals may be updated in supplements to this prospectus,
which will be filed with the Securities and Exchange Commission in accordance
with Rule 424(b) under the Securities Act of 1933, as amended. The stockholders
listed below have sole voting and investment powers with respect to the shares.
Their addresses are in care of us.
Number of
Name of Selling Shareholdings Shares Offered
Stockholder Number Percent for Sale (1)
----------- ------ ------- ------------
Denise A. Sutton 6,569,500 62.9 200,000
James H. Comstock 175,000 1.7 175,000
(1) Represents shares underlying stock options issued under the plan.
METHOD OF SALE
Sales of the shares offered by this prospectus will be made on the
Electronic Bulletin Board where our common stock is listed for trading, in other
markets where our common stock may be traded, or in negotiated transactions.
Sales will be at prices current when the sales take place and will generally
involve payment of customary brokers' commissions. There is no present plan of
distribution.
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SEC POSITION REGARDING INDEMNIFICATION
Our Articles of Incorporation and Bylaws provide for indemnification of
officers and directors, among other things, in instances in which they acted in
good faith and in a manner they reasonably believed to be in, or not opposed to,
our best interests and in which, with respect to criminal proceedings, they had
no reasonable cause to believe their conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers or persons
controlling us under the provisions described above, we have been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in that Act and is therefore unenforceable.
DESCRIPTION OF THE PLAN
In October 1999, our stockholders approved our 1999 Stock Option Plan for
the benefit of our employees, officers, directors and consultants. We believe
that the plan provides an incentive to individuals to act as employees,
officers, directors and consultants and to maintain a continued interest in our
operations and future. All options are non-qualified stock options.
The terms of the plan provide that we are authorized to grant options to
purchase shares of common stock, which we refer to as "options" or "option
shares" to our employees, officers, directors and consultants upon the majority
consent of our Board of Directors acting as the Stock Option Committee. Any
employee, officer, director or consultant is eligible to receive options under
the plan. The option price to be paid by optionees for shares may be less than
the fair market value of the options shares as reported by the Electronic
Bulletin Board on the date of the grant, and fair market value is defined as the
mean price between the bid and offer prices on the grant date. Options must be
exercised within 10 years following the date of grant (or sooner at the
discretion of the Board of Directors), and the optionee must exercise options
during service to us, or within three months of termination of such service, 12
months in the event of death on disability. In the event an optionee is
terminated for cause, the option terminates immediately. The Board of Directors
may set and thereafter accelerate the times at which the options are exercisable
or extend the termination date of any options.
A total of 1,000,000 shares of our authorized but unissued common stock
were initially reserved for issuance under the plan. In August 2000 we increased
the number of shares reserved under the plan to 3,500,000, of which 1,733,000
options are currently outstanding at exercise prices ranging from $1.00 to $5.00
per share.
Options under the plan may not be transferred, except by will or by the
laws of intestate succession. The number of shares and price per share of the
options under the plan will be proportionately adjusted to reflect forward and
reverse stock splits. The holder of an option under the plan has none of the
rights of a shareholder until shares are issued.
The plan is administered by our Board of Directors, acting as the
Committee, which has the power to interpret the plan, determine which persons
are to be granted options and the amount of such options.
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The provisions of the Federal Employee Retirement Income Security Act of
1974 do not apply to the plan. Shares issuable upon exercise of options will not
be purchased in open market transactions but will be issued by us from
authorized shares.
Payment for shares must be made by optionees in cash from their own funds.
No payroll deductions or other installment plans have been established. No
reports will be made to optionees under the plan except in the form of updated
information for the prospectus.
There are no assets administered under the plan and, accordingly, no
investment information is furnished.
Shares issuable under the plan may be sold in the open market, without
restrictions, as free trading securities. No options may be assigned,
transferred, hypothecated or pledged by the option holder. No person may create
a lien on any securities under the plan, except by operation of law. However,
there are no restrictions on the resale of the shares underlying the options.
The plan will remain in effect until December 2009, but may be terminated
or extended by our Board of Directors. Additional information concerning the
plan and its administrators may be obtained from us at the address and telephone
number indicated under "Incorporation by Reference" above.
APPLICABLE SECURITIES LAW RESTRICTIONS
If the plan optionee is deemed to be an "affiliate," as that term is
defined under the Securities Act of 1933, as amended, the resale of the shares
purchased upon exercise of options covered hereby will be subject to certain
restrictions and requirements. Our legal counsel may be called upon to discuss
these applicable restrictions and requirements with any optionee who may be
deemed to be an affiliate, prior to exercising an option.
In addition to the requirements imposed by the Securities Act of 1933, the
anti-fraud provisions of the Securities Exchange Act of 1934 and the rules
thereunder, including Rule 10b-5, are applicable to any sale of shares acquired
pursuant to options.
Up to 3,500,000 shares may be issued under the plan. We have authorized
50,000,000 shares of common stock of which 10,228,796 shares were outstanding as
of June 30, 2000. Common shares outstanding and those to be issued upon exercise
of options are fully paid and nonassessable, and each share of stock is entitled
to one vote at all shareholders' meetings. All shares are equal to each other
with respect to lien rights, liquidation rights and dividend rights. There are
no preemptive rights to purchase additional shares by virtue of the fact that a
person is our shareholder. Shareholders do not have the right to cumulate their
votes for the election of directors unless a candidate's name has been placed in
nomination prior to commencement of voting and a shareholder has given notice
prior to commencement of the voting of the shareholder's intention to cumulate
votes.
6
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Directors must comply with certain reporting requirements and resale
restrictions pursuant to Sections 16(a) and 16(b) of the Securities Exchange Act
of 1934 and the rules thereunder upon the receipt or disposition of any options.
TAX CONSEQUENCES
If an option is exercised and if the optionee does not dispose of the
shares acquired pursuant to the exercise within two years of the date of the
granting of the option nor within one year from the issuance of the shares
pursuant to exercise of the options, then there will not be any federal income
tax consequences to us from either the exercise of the option or the receipt of
the proceeds with respect to the exercise of the option. In such circumstances,
the optionee would not be required to recognize any taxable income upon the
exercise of the option. Furthermore, the sale of the shares received upon
exercise of the option would result in long-term capital gain or long-term
capital loss to the optionee based on the difference between the amount received
with respect to such sale and the amount paid upon the exercise of the option.
If an optionee exercised an option and sold the shares acquired pursuant to
such exercise either within two years from the date of the granting of the
option or within one year from the date of the transfer of such shares to him
pursuant to his exercise of the option, then in general we would be entitled to
a deduction for federal income tax purposes equal to lessor of: (1) the fair
market value of the stock on the date of exercise over the option price of the
stock; or (2) the amount realized on disposition over the adjusted basis of the
stock. The optionee would recognize income equal to the amount of our deduction.
Our deduction would be allowed, and the optionee's income would be taxable, in
the year the optionee disposed of the shares. However, if the disposition occurs
within two years of the date of the grant and the disposition is a sale or
exchange with respect to which a loss, if sustained, would be recognized
(generally any disposition other than to a related party), then the optionee's
income and our deduction would not exceed the excess (if any) of the amount
realized on such sale or exchange over the adjusted basis of such shares. We
expect that optionees will be required to exercise their options within ten
years from the date of grant although optionees may hold the shares issuable
upon exercise of the options indefinitely.
For options exercised after 1987, an individual generally must include in
alternative minimum taxable income the amount by which the option price paid is
exceeded by the fair market value at the time the individual's rights to the
shares are freely transferable or are not subject to a substantial risk of
forfeiture. The alternative minimum tax is payable only if the alternative
minimum tax exceeds the regular income tax liability.
The provision of Section 401(a) of the Code, relating to "qualified"
pension, profit sharing and stock bonus plans, do not apply to the options or
underlying shares covered hereby.
LEGAL MATTERS
The validity of the shares of common stock offered hereby upon exercise of
options will be passed on for us by Gary A. Agron, 5445 DTC Parkway, Suite 520,
Englewood, Colorado 80111.
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EXPERTS
Our financial statements which were incorporated by reference to our Annual
Report on Form 10-KSB for the year ended December 31, 1999, were audited by
Angell & Deering, independent certified public accountants and are incorporated
herein by reference.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed with the Securities and
Exchange Commission:
(a) The Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 1999, filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934 (the "Exchange Act");
(b) The description of the Registrant's common stock contained in
the Registrant's Registration Statement on Form 10-SB filed under the
Securities Exchange Act of 1934, as amended (Registration No.
0-28089), including any amendments or reports filed for the purpose of
updating such description.
(c) All other reports and subsequent reports filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended.
(d) The Registrant's Registration Statement on Form S-8, file
number 333-36372, filed May 5, 2000.
(e) The Registrant's Registration Statement on Form SB-2, file
number 333-36916, filed May 12, 2000
All reports and definitive proxy or information statements filed by the
Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold at the time
of such amendment will be deemed to be incorporated by reference into this
Registration Statement 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 Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
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Item 6. Indemnification of Directors and Officers.
Incorporated by reference to the Registrant's Registration Statement on
Form 10-SB, File Number 0-28089.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of Exhibits filed as part of the Registration
Statement:
4.0 1999 Stock Option Plan.
4.1 Non-Statutory Stock Option Agreement and Notice of Exercise.
5. Opinion of Gary A. Agron.
24. Consent of Angell & Deering, independent certified
public accountants.
Item 9. Undertakings.
The Registrant hereby undertakes (1) to file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement; to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933; (2) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post- effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
Registration Statement; (3) that, for the purpose of determining any liability
under the Securities Act of 1933, each post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and (4) 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 plan.
The Registrant hereby undertakes to deliver or cause to be delivered with
the prospectus to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
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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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than 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 against the
Registrant 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 Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and has caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
Greenwood Village, Colorado, on September 12, 2000.
WarpRadio.com, Inc.
By: /s/ Denise Sutton
------------------------------------------
Denise Sutton, Chief Executive Officer
Pursuant to the requirements of the 1933 Act, as amended, this Registration
Statement has been signed below by the following persons on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Denise Sutton Chief Executive Officer, September 12, 2000
---------------------------- Chief Financial Officer
Denise Sutton (Principal Accounting Officer)
/s/ James A. Comstock President and Director September 12, 2000
----------------------------
James A. Comstock
/s/ Jo S. Hadley Vice President September 12, 2000
----------------------------
Jo S. Hadley
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EXHIBIT INDEX
Exhibit No.: Exhibit:
------------ --------
4.0 1999 Stock Option Plan.
4.1 Non-Statutory Stock Option Agreement.
5. Opinion of Gary A. Agron.
23. Consent of Angell & Deering, independent certified
public accountants.
II-5
