UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Incubate This! Inc.
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(Name of small business issuer in its charter)
Colorado 93-0969365
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(State or other jurisdiction (I.R.S. Employer or
of incorporation organization) Identification No.)
265 Sunrise Avenue, Suite 204
Palm Beach, FL 33480 33480
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(Address of principal place of business) (zip code)
Incubate This! Inc.
YEAR 2000 EMPLOYEE/CONSULTANT STOCK COMPENSATION PLAN
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(Full title of the plan)
Incubate This! Inc.
Sharone Perlstein, President
265 Sunrise Avenue, Suite 204
Palm Beach, FL 33480
(561) 832-5696
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(Name, address and telephone number of agent for service)
Copies to:
Mintmire & Associates
265 Sunrise Avenue, Suite 204
Palm Beach, FL 33480
(561) 832-5696
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CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED PROPOSED MAXIMUM AMOUNT OF
SECURITIES AMOUNT MAXIMUM AGGREGATE REGISTRATION
TO BE TO BE OFFERING OFFERING FEE (1)
REGISTERED REGISTERED PRICE PRICE
PER SHARE PER SHARE
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Common Stock 1,000,000 $ 0.02 $20,000 $5.00
$.001 par value
(1) Estimated pursuant to Rule 457(c) and 457(h) solely for the purpose of
calculating the Registration Fee, which is based on the book value of the
Company's Common Stock on May 3, 2000 since there is no current market in
their stock.
(2) Represents the maximum number of shares which may be issued under the
Incubate This! Inc. Employee/Consultant Stock Compensation Plan (the
"Plan").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant pursuant
to the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference in this Registration Statement:
(1) The Registrant's Initial Report on Form l0KSB filed on April 13, 2000; and
(2) All other reports filed by the Registrant with the Commission pursuant to
Section 13(a) or Section 15(d) of the Exchange Act prior to and since the
end of the period covered by the Form 10SB referred to above; and
(3) The description of the Common Stock of the Registrant contained in the Form
10KSB referred to above.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto 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 herein and to be a part hereof from the date of filing
of such documents.
<PAGE>
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation of the Company provided that no director
shall be liable to the Corporation or any shareholder for monetary damages for
breach of fiduciary duty as a director, except for any matter in respect of
which such director (a) shall be liable under C.R.S. Section 7-5-114 or any
amendment thereto or successor provision thereto; (b) shall have breached the
director's duty of loyalty to the Corporation or its shareholders; (c) shall
have not acted in good faith or, in failing to act, shall not have acted in good
faith; (d) shall have acted or failed to act in a manner involving intentional
misconduct or a knowing violation of law; or (e) shall have derived an improper
personal benefit. Neither the amendment nor repeal of this Article of
Incorporation inconsistent with this Article, shall eliminate or reduce the
effect of this Article in respect of any matter occurring prior to such
amendment, repeal or adoption of an inconsistent provision. This Article shall
apply to the full extent now permitted by Colorado law or as may be permitted in
the future by changed or enactments on Colorado law, including without
limitation C.R.S. Section 7-2-102 and/or C.R.S. Section 7-3-101.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 * Opinion of Mintmire & Associates
10.35 * Incubate This! Inc. Year 2000 Employee/Consultant Stock Compensation
Plan
23.1 * Consent of Varma & Associates, CPAs
23.2 Consent of Mintmire & Associates (contained in the opinion filed as
Exhibit 5.1 hereof)
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(* filed herewith)
Item 9. Undertakings.
The Registrant hereby undertakes:
(1) to file, during any period in which it offers or sells securities, a post
effective amendment to this registration statement to include any
prospectus required by Section 10(a) (3) of the Securities Act;
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(2) that, for the purpose of determining any liability under the Securities Act
of 1933, to treat each post-effective amendment as a new registration
statement of the securities offered, and the offering of the securities at
that time to be the initial bona fide offering;
(3) to remove from registration by means of a post-effective amendment any of
the securities that remain unsold at the end of the offering.
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 small business issuer pursuant to the foregoing provisions, or
otherwise, the small business issuer 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 Company 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 Company will, unless in the opinion of this
counsel that 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
jurisdiction 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 on May 3, 2000.
Incubate This! Inc.
By: /s/ Sharone Perlstein
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Sharone Perlstein
President
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 dates indicated.
Signature Title Date
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/s/ Sharone Perlstein Sole Officer and Director May 3, 2000
- --------------------------- and Chief Executive Officer
Sharone Perlstein
EXHIBIT 5.1 and 23.2
May 3, 2000
Board of Directors
Incubate This! Inc.
265 Sunrise Avenue
Suite 204
Palm Beach, FL 33480
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about May 3,
2000, in connection with the registration under the Securities Act of 1933, as
amended, of 1,000,000 shares of the Company's Common Stock, no par value
(exclusive of any securities associated therewith, the "Stock") to be sold by
you pursuant to the Company's Consultant/Employee Stock Compensation Plan. (the
"Purchase Plan").
As your counsel, we have examined the proceedings relating to and action taken
by you in connection with the adoption of the Purchase Plan.
It is our opinion that the 1,000,000 shares of the Stock that may be issued and
sold by the Company pursuant to the Plan, when issued and sold in the manner
provide in the Plan, will be validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any amendments thereto. In providing this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Mintmire & Associates
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MINTMIRE & ASSOCIATES
EXHIBIT 10.35
CONSULTANT/EMPLOYEE STOCK COMPENSATION PLAN
I. PURPOSE OF THE PLAN.
The purpose of this Plan is to further the growth of Incubate This! Inc.,
by allowing the Company to compensate consultants and certain other Employees
who have provided bona fide services to the Company, through the award of Common
Stock of the Company.
II. DEFINITIONS.
Whenever used in this Plan, the following terms shall have the meanings
set forth in this Section:
1. "Award" means any grant of (i) Common Stock or (ii) options or
warrants to purchase Common Stock made under this Plan.
2. "Board of Directors" means the Board of Directors of the Company.
3. "Code" means the Internal Revenue Code of 1986, as amended.
4. "Common Stock" means the Common Stock of the Company.
5. "Date of Grant" means the day the Board of Directors authorized the
grant of an Award or such later date as may be specified by the Board
of Directors as the date a particular Award will become effective.
6. "Consultant" means any person or entity (i) who has rendered or will
render bona fide services to the Company, and (ii) who, in the opinion
of the Board of Directors, are in a position to make, or who have
previously made, a significant contribution to the success of the
Company.
7. "Subsidiary" means any corporation that is a subsidiary with regard to
as that term is defined in Section 424(f) of the Code.
III. EFFECTIVE DATE OF THE PLAN.
The effective date of this Plan is May 3, 2000.
IV. ADMINISTRATION OF THE PLAN.
The Board of Directors will be responsible for the administration of
this Plan, and will grant Awards under this Plan. Subject to the express
provisions of this Plan and applicable law, the Board of Directors shall have
<PAGE>
full authority and sole and absolute discretion to interpret this Plan, to
prescribe, amend and rescind rules and regulations relating to it, and to make
all other determinations which it believes to be necessary or advisable in
administering this Plan. The determinations of the Board of Directors on the
matters referred to in this Section shall be conclusive. The Board of Directors
shall have sole and absolute discretion to amend this Plan. No member of the
Board of Directors shall be liable for any act or omission in connection with
the administration of this Plan unless it resulted from the member's willful
misconduct.
V. STOCK SUBJECT TO THE PLAN.
The maximum number of shares of Common Stock as to which Awards may be
granted under this Plan is 1,000,000 shares which number represents 1,000,000
shares not yet issued under the Plan. The Board of Directors may increase the
maximum number of shares of Common Stock as to which Awards may be granted at
such time as it deems advisable.
VI. PERSONS ELIGIBLE TO RECEIVE AWARDS.
Awards may be granted only to Consultants and Employees.
VII. GRANTS OF AWARDS.
Except as otherwise provided herein, the Board of Directors shall have
complete discretion to determine when and to which Consultants and Employees
Awards are to be granted, and the number of shares of Common Stock as to which
Awards granted to each Consultant and Employee will relate, and the terms and
conditions upon which an Award may be issued (including, without limitation, the
date of exercisability, exercise price and term of any Award which constitutes
an option or warrant to purchase Common Stock). No grant will be made if, in the
judgment of the Board of Directors, such a grant would constitute a public
distribution within the meaning of the Securities Act of 1933, as amended (the
"Act"), or the rules and regulations promulgated thereunder.
VIII. DELIVERY OF STOCK CERTIFICATES.
As promptly as practicable after authorizing the grant of an Award, the
Company shall deliver to the person who is the recipient of the Award, a
certificate or certificates registered in that person's name, representing the
number of shares of Common Stock that were granted. If applicable, each
certificate shall bear a legend to indicate that the Common Stock represented by
the certificate was issued in a transaction which was not registered under the
Act, and may only be sold or transferred in a transaction that is registered
under the Act or is exempt from the registration requirements of the Act.
IX. RIGHT TO CONTINUED ENGAGEMENT.
Nothing in this Plan or in the grant of an Award shall confer upon any
Consultant the right to continued engagement by the Company nor shall it
interfere with or restrict in any way the rights of the Company to discharge any
Consultant or to terminate any consulting relationship at any time.
<PAGE>
X. LAWS AND REGULATIONS.
1. The obligation of the Company to sell and deliver shares of Common
Stock on the grant of an Award under this Plan shall be subject to the
condition that counsel for the Company be satisfied that the sale and
delivery thereof will not violate the Act or any other applicable
laws, rules or regulations.
2. This Plan is intended to meet the requirements of Rule 16b-3 in order
to provide officers and directors with certain exemptions from Section
16(b) of the Securities Exchange Act of 1934, as amended.
XI. TERMINATION OF THE PLAN.
The Board of Directors may suspend or terminate this Plan at any time
or from time to time, but no such action shall adversely affect the rights of a
person granted an Award under this Plan prior to that date.
XII. DELIVERY OF PLAN.
A copy of this Plan shall be delivered to all participants, together
with a copy of the resolution or resolutions of the Board of Directors
authorizing the granting of the Award and establishing the terms, if any, of
participation.
EXHIBIT 23.1
Varma & Associates
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Bob A. Varma 610 Crown Oak Centre Drive
James P. Gately Longwood, Florida 32750
Mark A. Haas Office (406) 834-7344 Fax (406) 834-7814
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in the Registration Statement
of Incubate This! Inc., on Form S-8 to be filed on or about May 3, 2000, with
the Securities and Exchange Commission our report dated March 30, 3000 on the
financial statements of Incubate This! Inc., which express an unqualified
opinion and includes an explanatory paragraph relating to a going concern
uncertainty appearing in the Form 10KSB for the year ended December 31, 1999.
/s/ Varma & Associates, CPA's
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Varma & Associates, CPA's
Longwood, Florida
May 3, 2000
