U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
eCom.com, Inc.
(Exact name of registrant as specified in its charter)
Colorado 74-2026624
(State of Incorporation) (I.R.S. Employer ID No.)
650 West Georgia Street, Suite 315, Vancouver, British Columbia V6B 4N7
(Address of Principal Executive Offices) (Zip Code)
Employee Stock Incentive Plan
Retainer Stock Plan for Non-Employee Directors and Consultants
(Full title of the Plans)
Brian F. Faulkner, Esq., 3900 Birch Street, Suite 113, Newport Beach
California 92660
(Name and address of agent for service)
(949) 975-0544
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Offering Fee
Registered Price Per Price
Share (1)
Common
Stock 10,000,000 $0.18(1) $1,800,000 $475.20
Common
Stock 10,000,000 $0.01(2) $ 100,000 $ 26.40
(1) This Offering Price per Share is used solely for purposes
of estimating the registration fee pursuant to Rule 457(h)(1) and
is based on the average of the bid and ask prices on May 26, 2000
($0.18 per share). The option exercise price is based on 85% of
the market price on the date of granting of an option, as set
forth in the Employee Stock Incentive Plan (see Exhibit 4.1 to
this Form S-8).
(2) This Offering Price per Share is also established under Rule
457(h)(1) pursuant to the deemed issuance price as set forth in
the Retainer Stock Plan for Non-Employee Directors and
Consultants (see Exhibit 4.2 to this Form S-8).
Part I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
See Item 2 below.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in Part I,
Items 1 and 2, will be delivered to each of the participants in
accordance with Form S-8 and Rule 428 promulgated under the
Securities Act of 1933. The participants shall provided a written
statement notifying them that upon written or oral request they
will be provided, without charge, (i) the documents incorporated
by reference in Item 3 of Part II of the registration statement,
and (ii) other documents required to be delivered pursuant to
Rule 428(b). The statement will inform the participants that
these documents are incorporated by reference in the Section
10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be
directed.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the
fiscal year ended September 30, 1999; and
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by
the registration documents referred to in (a) above.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in the registration
statement and to be part thereof from the date of filing of such
documents.
(c) Description of Securities.
(1) General Description.
The Articles of Incorporation authorize the issuance of
10,000,000,000 shares of common stock, with a par value of $0.01.
The holders of the Shares: (a) have equal ratable rights to
dividends from funds legally available therefore, when, as, and
if declared by the Board of Directors of the Company; (b) are
entitled to share ratably in all of the assets of the Company
available for distribution upon winding up of the affairs of the
Company; and (c) are entitled to one non-cumulative vote per
share on all matters on which shareholders may vote at all
meetings of shareholders. These securities do not have any of the
following rights: (a) special voting rights; (b) preference as to
dividends or interest; (c) preemptive rights to purchase in new
issues of Shares; (d) preference upon liquidation; or (e) any
other special rights or preferences. In addition, the Shares are
not convertible into any other security. There are no
restrictions on dividends under any loan other financing
arrangements or otherwise. As of May 1, 2000, the Company had
24,595,739 shares of common stock issued and outstanding. There
are no preferred shares authorized in the Articles of
Incorporation.
(2) Non-Cumulative Voting.
The holders of shares of common stock of the Company do not have
cumulative voting rights, which means that the holders of more
than 50% of such outstanding Shares, voting for the election of
directors, can elect all of the directors to be elected, if they
so choose. In such event, the holders of the remaining Shares
will not be able to elect any of the Company's directors.
(3) Dividends.
The Company does not currently intend to pay cash dividends. The
Company's proposed dividend policy is to make distributions of
its revenues to its stockholders when the Company's Board of
Directors deems such distributions appropriate. Because the
Company does not intend to make cash distributions, potential
shareholders would need to sell their shares to realize a return
on their investment. There can be no assurances of the projected
values of the shares, nor can there be any guarantees of the
success of the Company.
A distribution of revenues will be made only when, in the
judgment of the Company's Board of Directors, it is in the best
interest of the Company's stockholders to do so. The Board of
Directors will review, among other things, the investment quality
and marketability of the securities considered for distribution;
the impact of a distribution on its customers, joint venture
associates, management contracts, other investors, financial
institutions, and the company's internal management, plus the tax
consequences and the market effects of an initial or broader
distribution of such securities.
(d) Possible Anti-Takeover Effects of Authorized but Unissued Stock.
The Company's authorized but unissued capital stock consists
of 9,975,404,261 Shares of common stock. One effect of the
existence of authorized but unissued capital stock may be to
enable the Board of Directors to render more difficult or to
discourage an attempt to obtain control of the Company by means
of a merger, tender offer, proxy contest, or otherwise, and
thereby to protect the continuity of the Company's management.
If, in the due exercise of its fiduciary obligations, for
example, the Board of Directors were to determine that a takeover
proposal was not in the Company's best interests, such shares
could be issued by the Board of Directors without stockholder
approval in one or more private placements or other transactions
that might prevent, or render more difficult or costly,
completion of the takeover transaction by diluting the voting or
other rights of the proposed acquiror or insurgent stockholder or
stockholder group, by creating a substantial voting block in
institutional or other hands that might undertake to support the
position of the incumbent Board of Directors, by effecting an
acquisition that might complicate or preclude the takeover, or
otherwise.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Other than as set forth below, no named expert or counsel was
hired on a contingent basis, will receive a direct or indirect
interest in the small business issuer, or was a promoter,
underwriter, voting trustee, director, officer, or employee of
the Registrant.
Item 6. Indemnification of Directors and Officers.
(a) In General. Subject to the laws of the State of Nevada, the
Registrant is to indemnify any director, officer, employee or
agent of the Registrant, or any person serving in such capacity
for any other entity or enterprise at the request of the
Registrant, against any and all legal expenses (including
attorneys fees), claims and liabilities arising out of any
action, suit or proceeding, except an action by or in the right
of the Registrant.
(b) Lack Of Good Faith; Criminal Conduct. The Registrant is not
required to indemnify any person unless such person acted in good
faith and in a manner reasonably believed to be in or not opposed
to the best interests of the Registrant and, with respect to any
criminal action or proceeding, where there was no reasonable
cause to believe the conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order of settlement,
conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Registrant, and
that, with respect to any criminal action or proceeding, there
was reasonable cause to believe that the conduct was unlawful.
Moreover, the Registrant shall not indemnify any person adjudged
to be liable for negligence or misconduct, ill the performance of
a duty to the Registrant unless and only to the extent that the
court in which such action or suit was brought determines upon
application that, despite the adjudication of liability, such
person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
(c) Successful Defense Of Actions. The Registrant shall
reimburse or otherwise indemnify any Director, officer, employee
or agent against legal expenses (including attorneys fees)
actually and reasonably incurred in connection with the defense
of any action, suit or proceeding herein above referred to, to
the extent such person is successful on the merits or otherwise.
(d) Authorization. Indemnification shall be made by the
Registrant only when authorized in the specific case and upon a
determination that indemnification is proper by: 1. The
Shareholders; 2. Majority vote of a quorum of the Board of
Directors consisting of Directors who are not parties to the
action, suit or proceeding; or 3. Independent legal counsel in a
written opinion if a quorum of disinterested Directors cannot be
obtained.
(e) Advancing Expenses. Expenses incurred in defending any
action, suit or proceeding may be paid by the Registrant in
advance of the final disposition, when authorized by the Board of
Directors, upon receipt of an undertaking by or on behalf of the
person defending to repay such advances if indemnification is not
ultimately available under these provisions.
(f) Other Rights; Continuing Indemnification. The indemnification
provided by these Bylaws does not exclude any other rights to which the
person seeking indemnification may be entitled under the law, shall continue
as to a person who has ceased to be a Director, officer, employee or agent,
and shall inure to the benefit of the heirs, executors and administrators
of such a person.
(g) Insurance. The Registrant may purchase and maintain
insurance on behalf of any person who is or was a Director,
officer, employee or agent of the Registrant1 or who is or was
serving at the request of the Registrant in any capacity against
any liability asserted against such person.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this 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;
(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) 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 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.
(e) 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 Regulation S-B 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.
(h) That 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 Act 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 Act and will be governed by the final adjudication of such
issue.
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 registration statement to be signed on its
behalf by the undersigned, thereunto duly authorize, in the City
of Newport Beach, State of California, on May 26, 2000.
eCom.com, Inc.
/s/ Sidney B. Fowlds
Sidney B. Fowlds, President
Special Power of Attorney
The undersigned constitute and appoint Sidney Fowlds their true
and lawful attorney-in-fact and agent with full power of
substitution, for him and in his name, place, and stead, in any
and all capacities, to sign any and all amendments, including
post-effective amendments, to this Form S-8 Registration
Statement, and to file the same with all exhibits thereto, and
all documents in connection therewith, with the U.S. Securities
and Exchange Commission, granting such attorney-in-fact the full
power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorney-in-fact 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/ Sidney B. Fowlds President/Chairman of the Board May 26, 2000
Sidney B. Fowlds
/s/ John Johnston Vice President/Director May 26, 2000
John Johnston
/s/ Anthony V. Feimann Secretary/Treasurer May 26, 2000
Anthony V. Feimann
/s/ Robert M. Miller Director May 26, 2000
Robert M. Miller
EXHIBIT INDEX
Exhibit Method of
Number Description Filing
4.1 Employee Stock Incentive Plan See Below
4.1 Retainer Stock Plan for Non-Employee Directors
and Consultants See Below
5 Opinion Re: Legality See Below
23.1 Consent of Accountant See Below
23.2 Consent of Counsel See Below
24 Special Power of Attorney See
Signature
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