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FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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USA TALKS.COM, INC.
(Exact Name of Registrant as Specified in Charter)
Nevada 93-0915593
(Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
4350 EXECUTIVE DRIVE SUITE 220
SAN DIEGO, CALIFORNIA 92121
(Address of Principal Executive Offices)
USA TALKS.COM, INC. CONSULTING AGREEMENT
(Full title of the Plan)
Allen J. Portnoy
4350 EXECUTIVE DRIVE SUITE 220
SAN DIEGO, CALIFORNIA 92121
619-546-0550
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copies of communications to:
William H. Ervine, Jr.
USA Talks.com, Inc.
4350 Executive Drive, Suite 220
San Diego, California 92121
(619) 546-0550
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per share 15,500 $5.48(1) $85,000 (1) $25.08
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(1) Computed pursuant to Rules 457 (c ) and 457 (h) (l) based on the market
value of the Common Stock on September 9, 1998. The stock is traded on the
OTCBB: USAT.
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORTION OF CERTAIN DOCUMENTS BY REFERENCE.
This registration Statement on Form S-8 is filed pursuant to General
Instruction E for the purpose of registering shares of Common Stock of USA
Talks.com,. Inc. (the Registrant) issuable as full settlement of compensation
due pursuant to an Agreement with an independent consultant. The information
set forth below is incorporated by reference in this Registration Statement as
provided by General Instruction E and as otherwise provided by the General
Instructions to Form S-8. The Registrant hereby incorporates by reference in
this Registration Statement the following documents filed with the Commission by
the Registrant pursuant to the Exchange Act of 1934, as amended:
1. The Registrant's Annual Report on Form 10-KSB for the year ended December 31,
1997;
2. The Registrant's Quarterly Report on Form 10-QSB for the quarter ended June
30, 1998;
3. Articles of Incorporation, as amended, as filed with Form S-8 On July 31,
1998.
4. Bylaws as filed with Form S-8 On July 31, 1998.
5. All other reports filed by the Registrant or the Plan pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered
by its annual report referred to in paragraph (1) above.
All documents and other reports subsequently 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 to this Registration Statement 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 this Registration Statement
and to be part hereof from the date of filing of such documents or reports. Any
statements 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 superseded shall not be 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. DESRIPTION OF SECURITIES
The Registrant's authorized capital stock consists of (i) 50,000,000 shares
of Common Stock, par value $.001 per share, of which 13,000,000 shares were
outstanding
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as of the date of this Registration Statement, (ii)1,000 shares of Class A
Preferred Stock, par value $.001 per share, with other terms or preferences to
be set by the Registrant's board of directors, none of which are outstanding as
of the date of this Registration Statement, (iii) 1,000 shares of Class B
Preferred Stock, par value $.001 per share, with other terms or preferences to
be set by the Registrant's board of directors, none of which are outstanding as
of the date of this Registration Statement, (iv) 1,000 shares of Class C
Preferred Stock, par value $.001 per share, with other terms or preferences to
be set by the Registrant's board of directors, none of which are outstanding as
of the date of this Registration Statement. Each share of Common Stock has
equal rights as to voting and in the event of dissolution and liquidation.
There is no cumulative voting by shareholders. Shareholders have no preemptive
rights to acquire any shares of Registrant.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection I of Section 78.7502 of Chapter 78 of the Nevada General
Corporation Law ("NGCL") 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 ( except in an action by or in the right of the corporation) by
reason of the fact that he 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 or enterprise,
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith or in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding by judgment,
order settlement, conviction or upon a plea of nolo contedere or its equivalent,
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe his action was
unlawful.
Subsection 2 of Section 78.7502 of the NGCL 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 he
acted in any of the capacities set forth above, against expenses, including
amounts paid in settlement and attorneys' fees, actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he
acted in accordance with the standard set forth above, except that no
indemnification may be made in respect of any claim , issue or matter as to
which such person shall have been adjudged by a court liable to the corporation
or for amounts paid in settlement to the corporation unless and only to the
extent that the court in which such
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action or suit was brought or other court of competent jurisdiction determines
that , in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnify for such expenses as the court deems proper.
Section 78.751 of the NGCL provides that unless indemnification is ordered
by a court, the determination to provide indemnification must be made by the
stockholders, by a majority vote of a quorum of the board of directors who were
not parties to the action, suit or proceeding, or in addition the articles of
incorporation, by laws or an agreement made by the corporation may provide for
the payment of the expenses of a director or officer of the expenses of
defending an action as incurred upon receipt or an undertaking to repay the
amount if it is ultimately determined by a court of competent jurisdiction
that the person is not entitled to indemnification Section 78.751 of the NGCL
further provides that, to the extent a director or officer of a corporation has
been successful on the merits or other wise in (1) and (2), or in the defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided by section 78.751 of the
NGCL shall not be deemed exclusive of the other rights to which the indemnified
party may be entitled and that the scope of indemnification shall continue as
to directors, officers, employees or agents who have ceased to hold such
positions, and to their heirs, executors and administrators.
Finally, Section 78.752 of the NGCL empowers the corporation to purchase
and maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him or incurred by him in
any such capacity or arising our of his status as such whether or not the
corporation would have the authority to indemnify him against such liabilities
and expenses.
The Registrant's articles of incorporation provide that, as the board of
directors of the Registrant may provide from time to time, in the bylaws or by
resolution, the Registrant may indemnify its officers, directors, agents and
other persons to the full extent permitted by the laws of the State of Nevada.
The Registrant's bylaws provide for indemnification of officers, directors and
others and purchase of insurance pursuant to provision based on the foregoing
provisions of the NGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits it incorporated herein
by reference.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes;
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") 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 the
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or other
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 expresses in the Act and
will be governed by the final adjudication of such issues.
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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 the filing on Form S-8 and has duly caused the Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized in San Diego, CA, on July 28, 1998.
USA Talks.com, Inc.
By: /s/ Allen Portnoy
Allen J. Portnoy
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, Registrtion
Statement on Form S-8 has been signed by the following persons in the
capacities and on the date indicated.
Signatures Title Date
/s/ Allen Portnoy Chief Executive Officer,
Allen J. Portnoy Secretary and Director September 9, 1998
/s/ William H. Ervine President and Director September 9, 1998
William H. Ervine, Jr.
/s/ Jack Alexander Chief Financial Officer September 9, 1998
Jack C. Alexander
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/s/ Stephen Storey Director September 9, 1998
Stephen A. Storey
/s/ Max S. Kissell Director September 9, 1998
Max S. Kissell
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INDEX TO EXHIBITS
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Exhibit
No. Exhibit
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<S> <C>
4.1 USA Talks.com, Inc. Consulting Agreement
4.2 Resolution of the Board of Directors
authorizing issuance of shares
23.1 Consent of Crouch Bierwolf & Company, CPA
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Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made as of July 30, 1998, by
and between USA Talks.com, Inc., a Nevada corporation (the "Company") and Harvey
Productions, Inc., a California corporation (herein called the "Consultant").
WITNESSETH:
For and in consideration of the mutual promises and covenants herein
contained, the parties hereto mutually agree as follows:
SECTION 1. DEFINITIONS. For the purposes of this Agreement, the following
terms have the meanings specified or referred to in this Section 1.
"CONFIDENTIAL INFORMATION"-- any and all:
(a) trade secrets concerning the business and affairs of the Company,
including, but not limited to, information related to speech recognition
technology, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information, and all mask works), and any other information,
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however documented.
(b) information concerning the business and affairs of the Company (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials, however documented; and
(c) notes, analysis, compilations, studies, summaries, and other material
prepared by or for the Company containing or based, in whole or in part, on any
information included in the foregoing.
"INVENTION"-- any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether
registerable or not), any mask work, however fixed or encoded, that is suitable
to be fixed, embedded or programmed in a semiconductor product (whether
recordable or not), and any work of authorship (whether or not copyright
protection may be obtained for it) created, conceived, or developed by
Consultant, either solely or in conjunction with others, during the term of the
Agreement, or a period that includes a portion of the term of the Agreement,
that relates in any way to, or is useful in any manner in, the business then
being conducted or proposed to be conducted by the Company, and any such item
created by Consultant, either solely or in conjunction with others, following
termination of this Agreement, that is based upon or uses Confidential
Information.
SECTION 2. CONSULTING AGREEMENT. The Company hereby retains the Consultant
for the term and upon the terms and conditions hereinafter set forth to perform
technical consulting services for the Company, and the Consultant hereby agrees
to perform such services.
SECTION 3. TERM. The term of this Agreement shall commence as of July 30,
1998, and continue at least until the Consultant, working with the USA Talks.com
technical team and marketing team, has been successful in achieving its
following assigned objectives:
1. A 30-minute Silver Premier Production "Investing in America."
2. Two 30-second advertising spots
3. One month Internet Harvey Productions Broadcasting
4. Harvey Productions Publications
5. Harvey Productions Radio Network
Either party hereto may terminate this Agreement by providing the other party
with ten (10) days' written notice of its intent to terminate the Agreement.
The provisions of Section 5 of this Agreement shall survive the termination of
this Agreement.
SECTION 4. INDEPENDENT CONTRACTOR STATUS. The parties expressly intend that
Consultant shall perform its duties hereunder as an independent contractor of
the Company and not as an employee. As an independent contractor, the Company
shall not be responsible for tax, employee benefit and other liabilities
relating to Consultant.
SECTION 5. CONFIDENTIAL INFORMATION; INVENTIONS. (a) the Consultant
acknowledges that
7
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(i) during the term of the Agreement, the Consultant will be afforded access to
Confidential Information; (ii) public disclosure of such Confidential
Information could have an adverse effect on the Company and its business;
(iii) because the Consultant possesses substantial technical expertise and skill
with respect to the Company's business, the Company desires to obtain exclusive
ownership of each Invention, and the Company will be at a substantial
competitive disadvantage if it fails to acquire exclusive ownership of each
Invention; and (iv) the provisions of this Section 5 are reasonable and
necessary to prevent the improper use or disclosure of Confidential Information
and to provide the Company with exclusive ownership of all Inventions.
(b) All Confidential Information which the Consultant creates or otherwise
develop or which comes into its possession during the term of the Agreement
shall be and remain the exclusive property of the Company.
(c) Unless authorized in writing by the Company, the Consultant will
maintain all Confidential Information in confidence and, except as necessary in
conjunction with its work for the Company, will not copy or make notes of,
divulge to anyone outside the Company or use any of the Confidential Information
for its own or another's benefit, either during or after the term of the
Agreement. The Consultant agrees that it will promptly disclose to the Company
all Confidential Information developed during the term of the Agreement.
(d) Upon request of the Company and, in any event, upon termination of
this Agreement, any Confidential Information in the possession or under the
control of the Consultant will be promptly surrendered and delivered to the
Company.
(e) The Consultant agrees that any and all Inventions created, developed
or discovered by or for the Company, or acquired by the Company from others, and
that comes into the Consultant's knowledge or possession during and in the
course of the term of this Agreement, shall be held in trust for the sole right
and benefit of the Company and that the Consultant shall not have any rights
and shall not acquire any rights therein unless and until the Company shall
expressly and in writing waive the rights that it has therein and thereto under
the provisions of this sentence. The Consultant further agrees (a) that any
and all Inventions, created, written, developed, furnished or produced by the
Consultant during the term of the Agreement shall be the exclusive property of
the Company, and that the Consultant shall not have any right, title or interest
of any kind therein or thereto or in and to any results or proceeds therefrom,
and (b) that at any time, during the term of this Agreement, the Consultant will
(1) upon the request and at the expense of the Company, (i) obtain patents or
copyrights on, or (ii) permit the Company to patent or copyright, any such
material, whichever is appropriate, and/or (2) at the request of the Company,
execute any and all assignments, instruments of transfer, or other documents,
that the Company deems necessary or appropriate to transfer to the Company all
rights in or to such materials or to evidence the Company's ownership of such
rights or any of them. The Consultant shall not, without limitation as to time
or place, use any Invention except on Company business during the term of the
Agreement or disclose same to any other person, firm or corporation, except for
disclosure on Company business.
SECTION 6. SOLICITATION. During the term of this Agreement, the Consultant
shall not
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directly or indirectly solicit any employee, consultant and/or vendor of the
Company( including, but not limited to, any software or other supplier with whom
the Company has a contractual relationship which is material to its business)
for participation in any other business that competes with the Company.
SECTION 7. COMPENSATION AND EXPENSE REIMBURSEMENT. (a) As compensation for
services rendered, Consultant shall receive the sum of $85,000 to be paid by the
Company. At the election of the Consultant, part or all of the compensation due
may be paid in equivalent value of the Company's Common Stock, provided that
such Stock shall free from all restrictions as to marketability.
(b) Upon submission by Consultant of proper receipts and itemized
accounts, the Company shall forthwith (following itemized request by Consultant)
reimburse Consultant for all reasonable expenses properly incurred by it in
connection with the performance of its duties hereunder.
SECTION 8. MISCELLANEOUS PROVISIONS.
(a) The Consultant acknowledges that the injury that would be suffered by
the Company as a result of a breach of the provisions of this Agreement would
be irreparable and that an award of monetary damages to the Company for such a
breach would be an inadequate remedy. Consequently, the Company will have the
right, in addition to any other rights it may have, to obtain injunctive relief
to restrain any breach or threatened breach or otherwise to specifically enforce
any provision of this Agreement, and the Company will not be obligated to post
bond or other security in seeking such relief.
(b) This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Company may merge or
consolidate or to which all or substantially all of its assets may be
transferred.
(c) All notices and other communications required or permitted hereunder
shall be in writing and may be personally delivered, deposited in the United
States mail (first class postage prepaid, return receipt requested), transmitted
by facsimile with a copy by United States mail (first class postage prepaid),
or sent by a private messenger or overnight courier which issues delivery
receipts, addressed to the party for whom they are intended at the following
addresses:
Address for the Company: USA Talks.com, Inc.
4350 Executive Drive, Suite 220
San Diego, CA 92121
Address for the Consultant: Harvey Productions, Inc.
1875 Century Park East, Suite 150
Century City, CA 90067
9
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Such notices and other communications shall be deemed effective upon receipt,
and in any event be deemed received five days after deposit in the U.S. mail,
one business day after the business day of transmission by facsimile, or one
business day after the business day of deposit with an overnight courier, as the
case may be.
(d) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended orally, but only by an
agreement in writing signed by the parties hereto.
(e) This Agreement will be governed by the laws of the State of California
without regard to conflicts of laws principles.
(f) If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
(g) This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
10
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date above first written above.
COMPANY:
USA Talks.com, Inc.
By: s/s William H. Ervine, Jr.
Name: William H. Ervine, Jr.,
President
CONSULTANT:
Harvey Productions, Inc.
By: s/s Richard Langley
Name: Richard Langley
President
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Exhibit 4.2
ACTION OF BOARD OF DIRECTORS
USA TALKS.COM, INC.
ACTION BY UNANIMOUS CONSENT
The undersigned constitution all of the members of the Board of Directors
of USA Talks.com, Inc., formerly SBB, Inc., as indicated below, hereby
approve the following resolution adopted September 9, 1998:
Be it resolved that the consulting firm of Harvey Productions, Inc. has
agreed to accept Common Shares in payment of services rendered. The specific
amount of the services rendered, or to be rendered, is $85,000, and the number
of Common Shares to be transferred is 15,500 as payment for these services.
A fully executed copy of this resolution shall be filed in the corporate
minute book.
September 9, 1998
s/s Allen J. Portnoy s/s William H. Ervine, Jr.
s/s Stephen A. Storey s/s Max S. Kissell
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8 to be filed on or about September 30, 1998) pertaining to
the Consulting Agreement of Harvey Productions, Inc., of our report dated
March 10, 1998 with the consolidated financial statements of SBB, Inc.
included in the Annual Report on Form 10KSB for the year ended December 31,
1997.
s/s Crouch Bierwolf & Chisholm
September 9, 1998
