UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TCOM VENTURES CORPORATION
(formerly Telecom Wireless Corporation
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(Exact name of registrant as specified in its charter)
Delaware 94-3172556
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5299 DTC Boulevard, Suite 1120, Englewood, CO 80111
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(Address of Principal Executive Offices, including Zip Code)
AMENDED AND RESTATED
2000 NON-QUALIFIED STOCK OPTION PLAN
------------------------------------
(Full title of the plan)
Calvin D. Smiley
President
TCOM Ventures Corporation
5299 DTC Boulevard, Suite 1120
Englewood, CO 80111
(Name and address of agent for service)
(303) 416-4000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
--------------------------------------------------------------------------------
Proposed Proposed
maximum maximum
Title of each class Amount offering aggregate Amount of
of securities to be price offering registration
to be registered Registered(1) per unit price fee
----------------------- ------------- ---------- ----------- --------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share,
underlying Non-qualified Stock Option
Plan (2) 2,500,000 $.44 $1,100,000
TOTAL 2,500,000 $.44 $1,100,000 $379.31
</TABLE>
(1) Pursuant to Rule 416, TCOM Ventures Corporation is also registering such
indeterminate number of shares of common stock that may be issuable upon
exercise of stock options by reason of stock splits, stock dividends or
similar transactions.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee on the basis of $0.44 per share (the
average of the high and low prices of the Registrant's common stock as
reported on the OTC Bulletin Board of September 1, 2000) for the additional
2,500,000 shares reserved for issuance under the Amended and Restated 2000
Non-Qualified Stock Option Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Registration Statement on Form S-8 will be sent or given to participants in the
Amended and Restated 2000 Non-Qualified Stock Option Plan (the "Stock Plan") and
holders of the Non-Qualified Stock Option Agreements as specified under Rule
428(b)(i) under the Securities Act of 1933, as amended (the "Securities Act").
In accordance with Rule 428(a) under the Securities Act 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. The Registrant shall maintain a file of such documents
in accordance with the provisions of Rule 428(a) under the Securities Act. Upon
request, the Registrant shall furnish to the Commission or its staff a copy or
copies of all documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
The following documents, which have been filed by TCOM Ventures Corporation
with the Commission are incorporated by reference herein and shall be deemed a
part hereof.
(1) Registration Statement on Form SB-2 effective February 24, 2000 (File
No. 333-91717), filed pursuant to the Securities Act of 1933, as
amended ("Securities Act").
(2) All reports filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") since February
24, 2000.
(3) The description of the Company's Common Stock, par value $.001 per
share, contained in its Registration Statement on Form SB-2 filed
under the Securities Act, including any amendment or report filed for
the purpose of updating such description
All other documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered have been sold or which de-registers all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents
(such documents, and the documents enumerated above, being hereinafter referred
to collectively as the "Incorporated Documents")
Any statement contained in an Incorporated Document shall be deemed to be
modified and superseded for the purposes of this Prospectus to the extent that a
statement contained therein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statements so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Item 4. Description Of Securities
Not Applicable
Item 5. Interest Of Named Experts And Counsel
Not Applicable
<PAGE>
Item 6. Indemnification Of Directors And Officers
The indemnification of officers and directors of the Registrant is governed
by Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") and the Restated Certificate of Incorporation and By-Laws of the
Registrant. Subsection (a) of DGCL Section 145 empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful.
Subsection (b) of DGCL Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
DGCL Section 145 further provides that to the extent that a present or
former director or officer is successful, on the merits or otherwise, in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
of Section 145, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith. In all cases in
which indemnification is permitted under subsections (a) and (b) of Section 145
(unless ordered by a court), it shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because the applicable standard of conduct has been met by the
party to be indemnified. Such determination must be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
The statute authorizes the corporation to pay expenses incurred by an officer or
director in advance of the final disposition of a proceeding upon receipt of an
undertaking by or on behalf of the person to whom the advance will be made, to
repay the advances if it shall ultimately be determined that he was not entitled
to indemnification. DGCL Section 145 also provides that indemnification and
advancement of expenses permitted thereunder are not to be exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any By-law, agreement, vote of stockholders or
disinterested directors, or otherwise. DGCL Section 145 also authorizes the
corporation to purchase and maintain liability insurance on behalf of its
directors, officers, employees and agents regardless of whether the corporation
would have the statutory power to indemnify such persons against the liabilities
insured.
Article IX of the Company's Articles of Incorporation, as amended,
provides:
"The Corporation shall provide indemnification and/or exculpation to its
Directors, Officers, employees, agents and other entities which deal with it to
the maximum extent provided, and under the terms provided, by the laws and
decisions of the courts of the State of Delaware and by any additional
applicable federal or state laws or court decisions.
<PAGE>
Article XI of the Company's Bylaws provide that provisions with respect to
indemnification and exculpation shall be as set forth in the Articles of
Incorporation.
Item 7. Exemption From Registration Claimed
The restricted securities not acquired under a registration statement filed
under the Securities Act which are to be reoffered or resold pursuant to this
registration statement were originally issued by the Company either to Selling
Shareholders, who, at the time of issuance were officers or employees of the
Company, pursuant to the exemption from registration provided by Rule 701 under
the Securities Act of 1933, or to Selling Shareholders, who at the time of
issuance were officers or key employees of the Company, pursuant to the
exemptions from registration provided by Section 4(2) and/or Rule 506 of
Regulation D under the Securities Act. Each of the latter group of Selling
Shareholders had access to adequate information prior to his or acquisition of
stock as a result of a business relationship with the Company. In addition, at
the time of purchase, each such Selling Shareholder represented that he or she
was acquiring such securities for his own account for investment, without any
present intention of selling or further distributing the same.
Item 8. Exhibits
Number Description of Document
------ ------------------------
4.1(1)* Amended and Restated 2000 Non-Qualified Stock Option Plan
4.2* Resale Prospectus
5.1* Opinion of Vanderkam & Sanders
23.1* Consent of Vanderkam & Sanders (included in Exhibit 5.1)
23.2* Consent of Ehrhardt Keefe Steiner & Hottman PC, Englewood, Colorado
23.3* Consent of Gerstle, Rosen & Associates, P.A., Boca Raton, Florida
23.4* Consent of Girardin, Baldwin & Associates LLP, Naples, Florida
-----------------
* Filed herewith
Item 9. Undertakings
(a) The undersigned 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii)To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(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.
(b) The undersigned Registrant hereby undertakes 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)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the 1934 Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Englewood, State of Colorado, on September 28,
2000.
TCOM VENTURES CORPORATION
By: /s/ Calvin D. Smiley
--------------------------------
Calvin D. Smiley, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James C. Roberts, Calvin D. Smiley and
Kosta S. Kovachev, and each or any of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any registration statement filed pursuant to Rule 462(b)
under the Securities Act of 1933 and any and all amendments (including
post-effective amendments) to this registration statement and to any
registration statement filed pursuant to Rule 462(b), and to file same, with all
exhibits thereto and, other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the foregoing, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent 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, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
----------- ------- ------
/s/ James C. Roberts Chairman of the Board September 28, 2000
----------------------- and Director
James C. Roberts
/s/ Calvin D. Smiley President, Principal Executive September 28, 2000
----------------------- Officer and Director
Calvin D. Smiley
/s/ Kosta S. Kovachev Principal Financial Officer and September 28, 2000
----------------------- Director
Kosta S. Kovachev
/s/ C. Stephen Guyer Vice President - Corporate September 28, 2000
----------------------- Finance, Controller and
C. Stephen Guyer Principal Accounting Officer
