<PAGE>
As filed with the Securities and Exchange Commission on January 11, 1999
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
--------------------
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)
CONSULTING SERVICES & FEE 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:
Alan L. Pepper, Esq.
Mitchell, Silberberg & Knupp LLP
11377 West Olympic Boulevard
Los Angeles, California 90064-1683
(310) 312-3155
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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, 750,000 $0.06(1) $45,000(1) $12.51(1)
par value $.001
per share
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
</TABLE>
(1) This registration statement is being filed to register 750,000 shares of
Common Stock issuable by the Registrant upon the exercise of a warrant
issued to a consultant at an exercise price of $0.06 per share. The
registration fee is computed pursuant to Rule 457(h)(1) based on the
warrant exercise price. Pursuant to Rule 416, this registration statement
also registers such number of additional shares of Common Stock that may be
offered or issued pursuant to the warrant to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
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- --------------------------------------------------------------------------------
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION 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 under a Consulting Services & Fee
Agreement. 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 Reports on Form 10-QSB for the
quarters ended March 31, 1998, June 30, 1998 and September 30,
1998;
3. The Registrant's Current Reports on Form 8-K filed on August 3,
1998 and November 23, 1998;
3. 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 the 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
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
The Registrant's authorized capital stock consists of (i) 50,000,000
shares of Common Stock, par value $.001 per share, of which 13,118,420 shares
were outstanding 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
and (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.
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection 1 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 and 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 proceedings, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contendere 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 of competent jurisdiction after
exhaustion of all appeals therefrom to be 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 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 indemnity 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 certain circumstances
by independent legal counsel in a written opinion. In addition, the articles of
incorporation, bylaws 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 of 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 otherwise in the defense of any action, suit or
proceeding referred to in subsection (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 for by Section 78.751 of the
NGCL shall not be deemed exclusive of any 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 out 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 officer, directors and
others and purchase of insurance pursuant to provisions based on the foregoing
provisions of the NGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
<PAGE>
Not applicable.
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
(a)(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in the 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 and 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 20 percent
change in the maximum offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) Include any additional or changed material information on the
plan of distribution;
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, and the information
required to be included in a post-effective amendment is incorporated by
reference from periodic reports filed by the registrant under the Securities
Exchange Act of 1934.
(2) To, for the purpose of determining liability under the Securities
Act of 1933, treat each such post-effective amendment as a new registration
statement relating to the securities offered, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering.
(3) To file a post-effective amendment to remove from registration
any of the securities being registered which remain unsold at the end 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 15(d) of the Securities 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.
(d) 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
<PAGE>
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.
<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
Registration Statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in San Diego, California, on January
7, 1999.
USA TALKS.COM, INC.
By: /s/ Allen J. Portnoy
-----------------------------------
Allen J. Portnoy
Chairman of the Board and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, Registration
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 J. Portnoy Chief Executive Officer, January 7, 1999
- -------------------------- Secretary and Director
Allen J. Portnoy
/s/ William H. Ervine, Jr. President and Director January 7, 1999
- --------------------------
William H. Ervine, Jr.
/s/ Jack C. Alexander Chief Financial Officer January 7, 1999
- --------------------------
Jack C. Alexander
/s/ Stephen A. Storey Director January 7, 1999
- --------------------------
Stephen A. Storey
/s/ Max S. Kissell Director January 7, 1999
- --------------------------
Max S. Kissell
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- ------- -------
<S> <C>
4.1 Consulting Services & Fee Agreement
4.2 Form of Warrant
4.3 Articles of Incorporation, as amended*
4.4 Bylaws**
5 Opinion of Mitchell, Silberberg & Knupp LLP re: legality
23.1 Consent of Mitchell, Silberberg & Knupp LLP
(included in its opinion contained in Exhibit 5)
23.2 Consent of Crouch Bierwolf & Company, CPA
</TABLE>
* Incorporated by reference from Exhibit 4.2 to Registration Statement on
Form S-8 filed on August 3, 1998 (Registration Number 333-60453)
** Incorporated by reference from Exhibit 4.3 to Registration Statement on
Form S-8 filed on August 3, 1998 (Registration Number 333-60453)
<PAGE>
Exhibit 4.1
CONSULTING SERVICES & FEE AGREEMENT
THIS AGREEMENT is made and entered into effective as of the 13th day
of October, 1998 by and between Robert M. Beaton & Associates, whose address is
12002 W. 14th Ave., Golden, CO 80401, hereinafter referred to as "RMB" and USA
Talks.com, Inc. whose address is 4350 Executive Drive, Suite 220, San Diego, CA
92121, hereinafter referred to as "Client".
RECITALS
CLIENT desires to develop its business plan acquire, engage a
qualified financial public relations firm, and develop relationships with the
securities analysts and brokerage firms.
RMB has reviewed this agreement and discussed the services to be
performed hereunder and has represented to CLIENT that RMB is qualified and
willing to assist CLIENT in accordance with the provisions of this Agreement.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1.1 RMB will provide all services, on a non-exclusive basis, required to assist
CLIENT in developing a professional business plan and corporate profile to
further client's business plans and its relationships within the securities
industry.
1.2 CLIENT will provide the owners of listed public companies introduced by RMB
with their current business plan, including audited financial statements and
projections, management background data, industry segment data, and all other
pertinent business information. RMB will assist CLIENT in securing and
developing such other data as may be required.
2.1 CLIENT reports or graphic information prepared by RMB under this
Agreement shall be the sole property of CLIENT, except to the extent that
such items consist of information available to the general public. All
Information that is the sole property of CLIENT hereunder shall be returned
to CLIENT at their request and shall not be printed, distributed, published
or disclosed to third parties by RMB without prior written consent of CLIENT.
2.2 In the course of performing under this Agreement, RMB will introduce
CLIENT to various individuals and business entities. In recognition of said
disclosures, CLIENT agrees that neither they nor any corporation and or its
subdivisions, subsidiaries, employees, agents with whom they may be
associated, will make any contact with, deal or otherwise become involved in
any transaction, contract, rollover, or extension with any contact revealed
to them by RMB during the term of this Agreement and for a period of two (2)
years following its termination without notifying RMB and paying fees as
proscribed in this Agreement. RMB agrees to treat as confidential all
information so designated when provided by CLIENT, during the term of this
agreement.
3.1 RMS is an independent contractor, RMS shall not constitute, hold himself or
be deemed to be an employee, servant, agent, or representative of CLIENT unless
so designated by CLIENT in writing. All employees, agents and permitted
subcontractors of RMB shall be under the direct charge of RMB and shall also be
independent contractors as regards their relationship with CLIENT.
3.2 In recognition of and in lieu of any cash compensation for RMB's
assistance. CLIENT agrees
<PAGE>
to compensate RMS with 5 year Warrants to purchase up to 750,000 shares of
USA Talks.com, Inc. to be issued to RMB and/or assigns. 3) CLIENT agrees to
register the shares underlying said warrants via an S-8 or other appropriate
registration statement within 21 days of the signing of this agreement and
that the strike price of said warrants shall be $0.06 per share.
3.3 CLIENT also agrees to pay reasonable legal fees and court costs that RMB
incurs in collecting any shares due them under this Agreement that are not paid
as agreed herein.
4.1 This Agreement contains and sets forth the entire agreement between CLIENT
and RMB with respect to the subject matter hereof. No modification, alteration,
or extension of this Agreement shall be effective unless in writing and executed
by the Parties subsequent to the effective date of this Agreement.
4.2 To facilitate the execution of this Agreement, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
instrument. Copies delivered by fax shall have the some force and effect as
original signed documents.
5.1 This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Colorado.
IN WITNESS WHEREOF, the Parties have set their signatures below.
USA Talks.com, Inc. Robert M. Beaton & Associates
/s/ Allen Portnoy /s/ R. M. Beaton
---------------------------- ---------------------------
A. Portnoy R.M. Beaton
Date: 10/28/98 Date: 10/28/98
<PAGE>
Exhibit 4.2
COMMON STOCK WARRANT
USA TALKS.COM, INC.
COMMON STOCK WARRANT
The Transferability of This Warrant is
Restricted as Provided in Section 1.
Void after 5:00 p.m., Pacific Standard time, Right to Purchase 750,000
___________________, 2003 shares of Common Stock
(subject to adjustment)
No. W-_____
PREAMBLE
USA TALKS.COM, INC. (the "Company"), a Nevada corporation, hereby
certifies that, for value received, ROBERT M. BEATON & ASSOCIATES (the
"Holder"), is entitled, subject to the terms set forth below, to purchase
from the Company at any time or from time to time, before 5:00 P.M.
California time, on ______________, 2003 (the "Termination Date"), 750,000
fully paid and nonassessable shares of Common Stock, $0.001 par value, of the
Company ("Common Stock"), at the purchase price per share (the "Purchase
Price") set forth in Section 3.2 (the "Purchase Price"). The number and
character of such shares of Common Stock and the Purchase Price are subject
to adjustment as provided herein.
This Warrant is the Common Stock Purchase Warrant (the "Warrant"),
evidencing the right to purchase an aggregate of 750,000 shares of Common Stock
of the Company (the "Warrant Shares"), issued pursuant to a certain Consulting
Services & Fee Agreement (the "Agreement"), dated as of October 28, 1998,
between the Company and the Holder.
As used herein the following terms, unless the context otherwise requires,
have the following respective meanings:
(a) The term "Company" includes any corporation which shall succeed
to or assume the obligations of the Company hereunder.
(b) The term "Common Stock" includes all stock of any class or
classes (however designated) of the Company, authorized on or after the
date hereof, the holders of which shall have the right, without limitation
as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions on any shares entitled to preference, and the holders of
which shall ordinarily, in the absence of contingencies, be entitled to
vote for the election of a majority of directors of the Company (even
though the right so to vote has been suspended by the happening of such a
contingency).
(c) The term "Other Securities" refers to any stock (other than
Common Stock) and
<PAGE>
other securities of the Company or any other person (corporate or
otherwise) which the holder of the Warrant at any time shall be entitled
to receive, or shall have received, on the exercise of the Warrant, in
lieu of or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of
Common Stock or Other Securities.
(d) The term "Warrant Shares" means the Common Stock issued or
issuable upon exercise of the Warrant.
(e) The term "Securities Act" means the Securities Act of 1933, or
any successor federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder, all as the same shall be in
effect at the time.
1. Restricted Securities. This Warrant has not been registered under the
Securities Act, nor pursuant to the provisions of the securities or other laws
of any other applicable jurisdictions, in reliance upon certain exemptions under
applicable state and federal laws. This Warrant is issued to the Holder in
reliance upon such fact based on the Holder's representations, warranties and
agreements. If, at the time of any transfer or exchange (other than a transfer
or exchange not involving a change in the beneficial ownership of such Warrant
or Warrant Shares) of a Warrant or Warrant Shares, such Warrant or Warrant
Shares shall not be registered under the Securities Act, the Company may
require, as a condition of allowing such transfer or exchange, that the Holder
or transferee of such Warrant or Warrant Shares, as the case may be, furnish to
the Company an opinion of counsel reasonably acceptable to the Company to the
effect that such transfer or exchange may be made without registration under the
Securities Act. In the case of such transfer or exchange and in the case of an
exercise of a Warrant if the Warrant Shares to be issued thereupon are not
registered pursuant to the Securities Act, the Company may require a written
statement that such Warrant or Warrant Shares, as the case may be, are being
acquired for investment and not with a view to the distribution thereof. The
certificates evidencing the Warrant Shares issued on the exercise of the Warrant
shall, if such Warrant Shares are being sold or transferred without registration
under the Securities Act, bear a legend to the effect that the Warrant Shares
evidenced by such certificates have not been so registered. The Company shall
expend its best efforts to register the Warrant Shares under the Securities Act
pursuant to a Registration Statement on Form S-8.
2. Transfer of Warrant. This Warrant and all rights hereunder shall not
be transferred to any entity without the prior written consent of the Company,
which consent may be withheld at its sole discretion.
3. Exercise of Warrant and Warrant Price.
3.1 Exercise of Warrant
This Warrant may only be exercised in full. The holder of this
Warrant may exercise it by surrendering this Warrant, with the exercise notice
at the end hereof duly executed by such holder, to the Company at its principal
office. The surrendered Warrant shall be accompanied by payment, in cash or by
certified or official bank check payable to the order of the Company, in the
amount obtained by multiplying the number of shares of Common Stock called for
on the face of this Warrant (giving effect to any adjustment therein) by the
Purchase Price.
3.2 Purchase Price. The Purchase Price shall be $0.06 per share of
Common Stock,
<PAGE>
subject to adjustment as provided in Section 5.
4. Delivery of Stock Certificates, Etc., on Exercise. As soon as
practicable after the exercise of this Warrant in full or in part, and in any
event within 10 days thereafter, the Company at its expense (including the
payment by it of any applicable issue taxes) will cause to be issued in the name
of and delivered to the holder hereof, or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, a certificate or
certificates for the number of fully paid and nonassessable Warrant Shares to
which such holder shall be entitled on such exercise, plus, in lieu of any
fractional Share to which such holder would otherwise be entitled, cash equal to
such fraction multiplied by the then current Fair Market Value of one full
Share. "Fair Market Value" shall mean (i) the closing price per share of the
Common Stock on the date of exercise of this Warrant (the "Exercise Date"), but
if no shares were traded on such date, then on the last previous date on which a
share was so traded if such date is no more than 30 days prior to the Exercise
Date, or, if shares are not traded, (ii) the average of the bid and asked
closing prices for one share of Common Stock on the over-the-counter market if
such prices are available as of a date that is no more than 30 days prior to the
Exercise Date, or, if such information is not available, (iii) the price per
share of Common Stock at which shares of Common Stock were sold by the Company
in private transactions as of a date that is no more than 30 days prior to the
Exercise Date, or, if none of the above is applicable, (iv) the fair market
value of a share of Common Stock as established by the Board of Directors of the
Company as of the Exercise Date using any reasonable method of valuation.
5. Adjustment of Purchase Price and Number of Warrant Shares.
5.1 The Purchase Price hereof shall be subject to adjustment from
time to time as follows:
(a) In case the Company shall, prior to the Termination Date, (i)
pay a dividend on its Common Stock in Common Stock, (ii) subdivide its
outstanding shares of Common Stock, or (iii) combine its outstanding shares
of Common Stock into a small number of shares, then, in such an event, the
Purchase Price in effect immediately prior thereto shall be adjusted
proportionately so that the adjusted Purchase Price will bear the same
relation to the Purchase Price in effect immediately prior to any such event
as the total number of shares of Common Stock outstanding immediately prior
to any such event shall bear to the total number of shares of Common Stock
outstanding immediately after such event. An adjustment made pursuant to this
subdivision (a), (i) shall become effective retroactively immediately after
the record date in the case of a dividend and (ii) shall become effective
immediately after the effective date in the case of a subdivision or
combination. The Purchase Price, as so adjusted, shall be readjusted in the
same manner upon the happening of any successive event or events described
herein.
(b) Upon each adjustment of the Purchase Price pursuant to
subdivision (a) of Subsection 5.1, the number of shares of Common Stock
purchasable upon exercise of this Warrant Certificate shall be adjusted to the
number of shares of Common Stock, calculated to the nearest one hundredth of a
share, obtained by multiplying the number of shares of Common Stock purchasable
immediately prior to such adjustment upon the exercise of this Warrant
Certificate by the Purchase Price in effect prior to such adjustment and
dividing the product so obtained by the new Purchase Price.
5.2 In case of any capital reorganization of the Company, or of any
reclassification of the Common Stock, this Warrant Certificate shall be
exercisable after such capital reorganization or reclassification upon the terms
and conditions specified in this Warrant Certificate, for the number of
<PAGE>
shares of stock or other securities which the Common Stock issuable at the
time of such capital reorganization or reclassification upon exercise of this
Warrant Certificate would have been entitled to receive upon such capital
reorganization or reclassification if such exercise had taken place
immediately prior to such action. The subdivision or combination of shares
of Common Stock at any time outstanding into a greater or lesser number of
shares of Common Stock shall not be deemed to be a reclassification of the
Common Stock of the Company for the purposes of this Subsection 5.2.
5.3 In case at any time or from time to time, the Company shall (a)
effect a reorganization, (b) consolidate with or merge into any other person or
(c) transfer all or substantially all of its properties or assets to any other
person under any plan or arrangement contemplating the dissolution of the
Company within 24 months from the date of such transfer (any such transaction
being hereinafter sometimes referred to as a "Reorganization") then, in each
such case, the holder of this Warrant, on the exercise hereof as provided in
Section 3 at any time after the consummation or effective date of such
Reorganization (the "Effective Date"), shall receive, in lieu of the Warrant
Shares issuable on such exercise prior to such consummation or such effective
date, the stock and other securities and property (including cash) to which such
holder would have been entitled upon such consummation, if such holder had so
exercised this Warrant, immediately prior thereto (all subject to further
adjustment thereafter as provided in Section 5).
5.4 Continuation of Terms. Except as otherwise expressly provided in
Subsection 5.3, upon any reorganization, consolidation, merger or transfer (and
any dissolution following any transfer) referred to in this Section 5, this
Warrant shall continue in full force and effect and the terms hereof shall be
applicable to the shares of stock and other securities and property receivable
on the exercise of this Warrant after the consummation of such reorganization,
consolidation or merger or the effective date of dissolution following any such
transfer, as the case may be, and shall be binding upon the issuer of any such
stock or other securities, including, in the case of any such transfer, the
person acquiring all or substantially all of the properties or assets of the
Company.
6. Exchange of Warrants. On surrender for exchange of any Warrant,
properly endorsed, to the Company, the Company at its expense will issue and
deliver to or (subject to Section 2) on the order of the holder thereof a new
Warrant or Warrants of like tenor, in the name of such holder or as such holder
(on payment by such holder or any applicable transfer taxes) may direct, calling
in the aggregate on the face or faces thereof for the number of shares of Common
Stock called for on the face of the Warrant or Warrants so surrendered.
7. Replacement of Warrants. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
8. Negotiability, Etc. This Warrant is issued upon the following terms,
to all of which each holder or owner hereof by the taking hereof consents and
agrees:
(a) This Warrant is not negotiable and may not be transferred by
the holder hereof; and
(b) This Warrant issued pursuant to the terms of the Agreement
and is subject
<PAGE>
to the terms thereof.
9. THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE'S SECURITIES ACTS, AND
MAY NOT BE TRANSFERRED OR HYPOTHECATED WITHOUT PRIOR REGISTRATION OR
QUALIFICATION UNDER SAID ACTS OR AN EXEMPTION THEREFROM ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
10. Notice, Etc. All notices and other communications from the Company to
the holder of this Warrant shall be mailed by first class registered or
certified mail, postage prepaid, at such address as may have been furnished to
the Company in writing by such holder or, until any such holder furnishes to the
Company an address, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
11. Miscellaneous. This Warrant and any term hereof may be changed,
waived, discharged or terminated only by an instrument in writing signed by the
party against which enforcement of such change, waiver, discharge or termination
is sought. This Warrant is being delivered in the State of California and shall
be construed and enforced in accordance with and governed by its laws. The
headings in this Warrant are for purposes of reference only, and shall not limit
or otherwise affect any of the terms hereof. All nouns and pronouns used
herein shall be deemed to refer to the masculine, feminine or neuter, as the
identity of the person or persons to whom reference is made herein may require.
12. Expiration. The right to exercise this Warrant shall expire at 5:00
P.M., Pacific Standard time, on ________________, 2003.
Dated: USA TALKS.COM, INC.
By:
-----------------------------------
Its: President
Attest:
- ---------------------------
Secretary
<PAGE>
NOTICE OF EXERCISE
The undersigned registered holder of the within Warrant irrevocably
exercises the within Warrant for and purchases _________________ shares of
Common Stock of USA Talks.com, Inc., a Nevada corporation, the amount of
$_____________, all at the price and on the terms and conditions specified in
the within Warrant and requests that a certificate for the shares of Common
Stock hereby purchased be issued in the name of and delivered to the
undersigned, whose address is ____________________________________________.
Dated: _______________, _________
ROBERT M. BEATON & ASSOCIATES
By:
Its:
<PAGE>
Exhibit 5
[LETTERHEAD]
CLIENT NO: 31413-0
DOC. NO. : 0074168
January 11, 1999
USA Talks.com, Inc.
4505 South Wasatch Blvd., #330
Salt Lake City, Utah 84124
Re: REGISTRATION STATEMENT ON FORM S-8
Dear Sirs:
You have requested the opinion of this firm with respect to certain
matters in connection with the Registration Statement on Form S-8 proposed to be
filed by you under the Securities Act of 1993, as amended (the "Securities
Act"), for the purpose of registering the offer and sale of 750,000 authorized
but unissued shares (the "Shares") of Common Stock, $0.001 par value (the
"Common Stock"), of USA Talks.com, Inc. (the "Company") issuable pursuant to
that certain Consulting Services & Fee Agreement, dated as of October 28, 1998,
between the Company and Robert M. Beaton & Associates (the "Agreement") and a
form of warrant to be issued by the Company to Robert M. Beaton & Associates
(the "Warrant").
For the purpose of rendering the opinions contained in this opinion
letter, we have examined copies of:
(a) The Agreement;
(b) The form of the Warrant;
(c) Resolutions of the Board of Directors of the
Company authorizing INTER ALIA, the issuance of
the Warrant and the Shares;
(d) Such other corporate records and other
instruments as we have deemed necessary or
appropriate.
<PAGE>
In the course of our examinations and investigations, we have assumed the
genuineness of all signatures on the original documents, and the due execution
and delivery of all documents requiring due execution and delivery for the
effectiveness thereof.
Based upon and subject to the foregoing, and in reliance thereon, and
subject to the assumptions set forth herein, it is our opinion that the issuance
of the Shares has been duly authorized and, when issued and delivered in
accordance with the terms of the Agreement and the Warrant, the Shares will be
legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Registration
Statement. In giving our consent, we do not hereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules or regulations thereunder. This opinion letter is
given as of the date hereof and we assume no obligation to advise you of any
change that may hereafter be brought to our attention.
Very truly yours,
MITCHELL, SILBERBERG & KNUPP LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement pertaining to the Consulting Services & Fee Agreement, of our
report dated March 10, 1998 with respect to the consolidated financial
statements of USAT Talks.com, Inc., formerly known as SBB, Inc. included in
the Annual Report on Form 10-KSB for the year ended December 31, 1997.
Crouch, Bierwolf & Chisholm
Salt Lake City, Utah
December 30, 1998
