As filed on April 23, 2004 Registration Statement No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
China Wireless Communications, Inc.
(Exact name of registrant as specified in its charter)
Nevada 91-1966948
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1746 Cole Boulevard, Suite 225, Golden, Colorado 80241-3210
(Address or principal executive offices)(Zip code)
Consulting Agreements
Employment Agreements
(Full title of plan)
Brad A. Woods, Interim President
China Wireless Communications, Inc.
1746 Cole Boulevard, Suite 225
Golden, Colorado 80401-3210
(Name and address of agent for service)
303-277-9968
(Telephone number, including area code, of agent for service)
Copy to:
Jeffrey M. Stein, Esq.
Berkman, Henoch, Peterson & Peddy, P.C.
100 Garden City Plaza
Garden City, New York 11530
CALCULATION OF REGISTRATION FEE
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Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered share price registration fee(1)
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Common stock, $0.001 3,941,167 (2) $0.60 (1) $2,364,700 $117.48
par value
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(1) The fee with respect to these shares has been calculated pursuant to
Rules 457(c) and 457(h) under the Securities Act of 1933 and based upon
the closing price of the Registrant's Common Stock as reported by the
OTC Bulletin Board on April 23 , 2004, a date within five business days
prior to the date of filing of this Registration Statement.
(2) Issuable to consultants and employees of Registrant
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8 under the Securities Act, to register shares of our
common stock, $.001 par value per share issued under stock grants and to be
reoffered. Under cover of this Form S-8 is our reoffer prospectus prepared in
accordance with Part I of Form S-3 under the Securities Act. Our reoffer
prospectus has been prepared pursuant to Instruction C of Form S-8, in
accordance with the requirements of Part I of Form S-3, and may be used for
reofferings and resales on a continuous or delayed basis in the future of
"restricted securities".
This registration statement contains a prospectus prepared in accordance
with the requirements of Part I of Form S-3 (pursuant to General Instruction C
to Form S-8) which covers reoffers and resales by certain of our stockholders of
shares of common stock, par value $0.001 per share (the "Common Stock"), of
China Wireless Communications, Inc. issued to employees or consultants of the
Company
In addition, this registration statement contains "Information Required in
the Registration Statement" pursuant to Part II of Form S-8. Pursuant to the
Note to Part I of Form S-8, the information relating to the shares issuable in
connection with options or rights to acquire shares of Common Stock granted or
to be granted is not filed with the Securities and Exchange Commission (the
"Commission"), but documents containing such information have been or will be
sent or given to employees or consultants as specified by Rule 428(b)(1). Such
document(s) are not being filed with the Commission but constitute (along with
the documents incorporated by reference into the registration statement pursuant
to Item 3 of Part II hereof) a prospectus that meets the requirements of Section
10(a) of the Securities Act.
ii
REOFFER PROSPECTUS
3,941,167 SHARES OF COMMON STOCK
China Wireless Communications, Inc.
1746 Cole Boulevard, Suite 225
Golden, Colorado 80401-3210
(303) 277-9968
This reoffer prospectus relates to 3,941,167 shares of the common stock
of China Wireless Communications, Inc. which may be offered and resold from time
to time by the selling stockholders identified in this prospectus or by
pledgees, donees, transferees, or other successors in interest. It is
anticipated that the selling stockholders will offer shares for sale at
prevailing prices on the OTC Bulletin Board on the date of sale. Such sales may
be made in the over-the-counter market or otherwise at prices and at terms then
prevailing or at prices related to the then current market price, or in
negotiated transactions. The Common Stock may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this Prospectus; (c) an exchange distribution in accordance with the rules of
such exchange; and (d) ordinary brokerage transactions and transactions in which
the broker solicits purchases. In effecting sales, brokers, or dealers engaged
by the Selling Shareholder may arrange for other brokers or dealers to
participate. Brokers or dealers may receive commissions or discounts from
Selling Shareholders in amounts to be negotiated immediately prior to the sale.
Such brokers or dealers and any other participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Act") in connection with such sales. In addition, any securities
covered by this Prospectus which qualify for sale pursuant to Rule 144 may be
sold under Rule 144 rather than pursuant to this Prospectus.
We will receive no part of the proceeds from sales made under this
reoffer prospectus although we have paid the expenses of preparing this
Prospectus and the related Registration Statement. The selling stockholders will
bear all sales commissions and similar expenses. Any other expenses incurred by
us in connection with the registration and offering and not borne by the selling
stockholders will be borne by us.
Our common stock is traded on the OTC Bulletin Board under the symbol
"CWLC." On April 21, 2004, the last reported price of our common stock on such
market was $0.53 per share.
This investment involves a high degree of risk. Please see "Risk
Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined whether this reoffer prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this reoffer prospectus is April 23, 2004.
TABLE OF CONTENTS
Page
OUR COMPANY ..................................................................3
RISK FACTORS..................................................................5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.............................7
USE OF PROCEEDS ..............................................................8
SELLING STOCKHOLDERS..........................................................8
PLAN OF DISTRIBUTION..........................................................9
INDEMNIFICATION OF DIRECTORS AND OFFICERS ...................................10
DESCRIPTION OF SECURITIES....................................................11
LEGAL MATTERS................................................................11
EXPERTS .....................................................................11
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..............................12
WHERE YOU CAN FIND ADDITIONAL INFORMATION ABOUT US...........................12
No person is authorized to give any information or to make any
representations other than those contained in this prospectus, and, if given or
made, such information or representations must not be relied upon as having been
authorized. This prospectus does not constitute an offer to sell or a
solicitation of an offer to buy such securities in any circumstance in which
such offer or solicitation is unlawful. Neither the delivery of this prospectus
nor any sale made hereunder shall, under any circumstances, create any
implication that there has been no change in our affairs since the date hereof
or that the information contained or incorporated by reference herein is correct
as of any time subsequent to the date of this prospectus.
2
OUR COMPANY
You should read this entire prospectus and the information incorporated
by reference in this prospectus carefully, including "Risk Factors" and our
financial statements and the notes to those financial statements.
AVL Information Systems Ltd. ("AVL") was a Canadian public company that
owned and licensed certain technology and automatic vehicle location systems. On
March 8, 1999, AVL incorporated in Nevada under the name AVL SYS International
Inc ("AVL SYS"). On March 9, 2000, AVL SYS changed the name to I-Track, Inc.
("ITI").
Effective September 30, 2001, ITI entered into an exclusive worldwide
distribution agreement with AVL. Under the agreement, ITI was licensed to market
and distribute all of the products manufactured by AVL. The exclusive
distribution agreement with AVL was cancelled in September 2002 at which point
the Company began to seek another business opportunity. On March 21, 2003, the
Company entered into an "Assignment and Assumption Agreement" with AVL whereby
the Company distributed to AVL all its assets and AVL assumed all liabilities of
the Company. Accordingly, as of March 21, 2003, the Company entirely ceased its
prior business operations. On March 22, 2003, ITI acquired all of the issued and
outstanding shares of Strategic Communications Partners, Inc., a Wyoming
corporation ("SCP"), pursuant to the terms of a Share Exchange Agreement. A
total of 19,000,000 restricted shares of ITI's common stock were issued to the
shareholders of SCP, resulting in the SCP shareholders as a group owning
approximately 88.4% of the outstanding shares of common stock of ITI. At this
time, SCP became a wholly owned subsidiary of ITI.
On March 24, 2003, in connection with our acquisition of SCP, the
Company's name was changed to China Wireless Communication, Inc.
SCP was incorporated in the State of Wyoming on August 13, 2002. It
provides financial, technical, and marketing services for its operation in
Beijing, People's Republic of China ("PRC"). Strategic Communications Partners
Limited ("SCPL") is a subsidiary of SCP. SCPL was incorporated in Hong Kong on
December 9, 2002. SCPL's business activities to date consist solely of
supporting the Beijing operations. On March 4, 2003, SCPL set up a wholly owned
enterprise, Beijing In-Touch Information System Co. Ltd. ("In-Touch") in the
PRC.
We are in the business of providing high speed wireless broadband for
its customers. We utilize proven reliable high speed wireless technologies to
complete the "last mile" connection from these backbone networks to the end
users. These customers would include businesses located primarily in commercial
buildings and Internet Service Providers ("ISP"s).
We are in the midst of developing a technologically advanced wireless
network to serve areas of business concentration in Beijing, China. In order to
effectively deploy the broadband wireless network, we need to partner with
companies whose business and products are complimentary to those of the Company.
However, there is no guarantee that we can find suitable partner and we will be
able to come to mutually agreeable terms if suitable partner could be found.
3
On July 8, 2003, we concluded a strategic alliance with WPCS
International Incorporated ("WPCS") to support the expansion of our broadband
wireless network in China. The alliance calls for WPCS to provide wireless
products and design services to us on an "as needed" basis.
On August 14, 2003, we signed a cooperative agreement with P-Com, Inc.
("P-Com") to develop a broadband wireless network within China. P-Com will
provide equipment and support for their line of wireless products to assist us
in building a wireless broadband network in China. We will use our marketing
resources and sales platform to recommend and popularize the products of P-Com.
On August 15, 2003, we signed a contract with MCI International Ltd.
Co. ("MCI"). This contract permits us to extend the reach of our Broadband
Wireless Access Network in Beijing, China. We will be adding MCI International
ATM [asynchronous transport mode] services to reach North America, South
Pacific, Asian and European markets to our existing suite of broadband product
and service offerings.
On August 15, 2003, the Company signed a cooperative agreement with
Datang Gohigh Networks Technology Corporation. This agreement provides China
Wireless with the capability to accelerate their network build out in Beijing to
provide connectivity for broadband network-based applications. Both companies
will begin the process to design, install, and maintain the City Broadband
Network Systems in Beijing in the first stage, then to duplicate the successful
model in other major cities in China. As a leading player in telecom equipment
market, Datang Gohigh will fully support CWC's development in China.
Alliances and partnerships with Tier One Telecom Carriers are critical
to our growth strategy. We believe current broadband access providers in China
are searching for economically viable ways to connect more end users to their
backbones and to direct more traffic to their underutilized networks. We provide
services meeting this growing demand. Over the last few months we have entered
into agreement with China Netcom Group Beijing Company to cooperate in building
out a network to serve its customers. We expect this and other such partnerships
to help us enter and develop in China's highly regulated telecom sector
successfully as a foreign invested enterprise. There are no guarantees that
these partnerships will be successful.
Our executive offices are located at 1746 Cole Boulevard, Suite 225,
Golden, Colorado 80401-3210, and our telephone number is (303) 277-9968.
4
RISK FACTORS
An investment in the common stock being offered for resale by the
selling shareholders is very risky. You should carefully consider the risk
factors described below, together with all other information in this prospectus
before making an investment decision. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also impair our
business operations. If any of the following risks actually occurs, our
business, financial conditions or operating results could be materially
adversely affected. In such case, the trading price of our common stock could
decline, and you may lose all or part of your investment.
We have a history of losses and we expect losses to continue for the
foreseeable future. There is doubt about our ability to continue as a going
concern. We have incurred losses since our inception, and we expect to continue
to incur additional losses. As of December 31, 2003, China Wireless
Communications had an accumulated deficit of $4,551,066. We cannot assure you
that we will achieve or sustain profitability in the future.
We expect to encounter risks frequently faced by early stage companies.
We have a limited operating history and our operations are subject to all of the
risks inherent in a new business enterprise engaged in the telecommunications
industry. The likelihood of our success must be considered in light of the
expenses, difficulties and delays frequently encountered in connection with the
start-up of new businesses, those historically encountered by us, and the
competitive environment in which we operate.
We do not generate sufficient revenue to finance our operations, and we
rely substantially upon outside financing. We believe we are likely to remain
unprofitable for the foreseeable future. Because of our inability to generate an
operating profit in the near future, it will be necessary for us to rely upon
external sources of financing. If we cannot obtain financing when needed, we may
not be able to find the capital expenditures required by our business operations
and may be forced to cease operations and abandon our business. You could lose
your entire investment.
Our future profitability remains uncertain. We have suffered losses
from operations, require additional financing, and we need to continue the
implementation of our business plan. Ultimately we need to generate revenues and
successfully attain profitable operations. These factors raise substantial doubt
about our ability to continue as a going concern. We cannot provide any
assurance that we will be able to attain profitable operations.
Our officers, directors and management may be subject to conflicts of
interests during our operations. Our officers, directors and members of our
management team are affiliated with other companies that are engaged in the
telecommunications industry. A conflict of interest poses the risk that we may
enter into a transaction on terms that would place us in a worse position than
if no conflict existed. While our directors are required by law to act honestly
and in good faith with a view to our best interest and to disclose any interest
which they many have in any project or opportunity of which we are involved, we
have no specific internal policy governing conflicts of interest.
5
We have entered into employment agreements with our officers that
contain significant "golden parachute" provisions. The employment agreements
with Pedro E. Racelis III, Vice President, secretary and treasurer and Brad
Woods, Interim President and Chief Executive Officer provide that if employment
should terminate due to death or a disability, each shall receive their salary
then in effect for an extended period of time. If termination should occur
without cause, including a termination upon a change in control (as defined in
the respective agreements), each shall receive their salary then in effect for
an extended period of time. The existence of these provisions could discourage
an acquisition on terms possibly beneficial to the shareholders.
You may suffer dilution in your ownership of our shares from the
exercise or conversion of options issued to other persons. There are outstanding
options to acquire shares of our common stock and we may grant additional
options in the future. If any of the outstanding options are exercised or
converted, your percentage ownership in the Company will be reduced. So long as
these options are exercisable, the holders will have the opportunity to profit
from a rise in the price of our common stock. The existence of such options may
adversely affect the terms on which we can obtain additional financing. The
holders of such options can be expected to exercise them at a time when we would
probably be able to obtain additional capital by an offering of our common stock
at a price higher than the exercise price of these outstanding options.
"Penny stock" rules could affect the secondary market for our common
stock and may affect your ability to sell shares of our common stock. Our common
stock is subject to rules promulgated by the SEC that regulate broker-dealer
practices in connection with transactions in "penny stocks". Generally, penny
stocks are equity securities with a price of less than $5.00 (other than
securities registered on certain national securities exchanges or quoted on the
NASDAQ system). The penny stock rules require a broker-dealer, prior to a
transaction in a penny stock not otherwise exempt from the rules, to deliver a
standardized risk disclosure document prescribed by the SEC that provides
information about penny stocks and the nature and level of risks in the penny
stock market. The broker-dealer also must provide the customer with current bid
and offer quotations for the penny stock, the compensation of the broker-dealer
and its salesperson in the transaction and monthly account statements showing
the market value of each penny stock held in the customer's account. In
addition, the penny stock rules require that prior to a transaction in a penny
stock not otherwise exempt from those rules; the broker-dealer must make a
special written determination that the penny stock is a suitable investment for
the purchaser and receive the purchaser's written agreement to the transaction.
These requirements may have the effect of reducing the level of trading activity
in the secondary market for a stock that becomes subject to the penny stock
rules. As long as our common stock is subject to the penny stock rules, the
holders of common stock may find it difficult to sell their common stock.
A limited public market for our common stock may impair your liquidity
and/or return on investment. Our common stock is traded in the over-the-counter
market. The price for the stock and the volume of shares traded fluctuate
widely. Consequently, persons who invest in our common stock may not be able to
use their shares as collateral for loans and may not be able to liquidate at a
suitable price in the event of an emergency. In addition, holders may not be
able to resell their shares, or may not be able to sell their shares at or above
the price they paid for them.
6
All of our operations are located in China. China is a developing
country, has only recently begun participating in global trade with its
accession to the World Trade Organization (WTO), and has only a limited history
of trade practices as a nation. We are subject to the laws, rules, regulations,
and political authority of the government of the People's Republic of China.
While we have legal counsel in China advising us on such issues, we may
encounter material problems while doing business in China.
We risk the effects of general economic conditions in China. Any sales
we secure could be adversely affected by a sustained economic recession in
China. As our operations and end user markets are primarily in China, a
sustained economic recession could result in lower demand or lower prices for
our services.
We are subject to political and currency risks in doing business in
China. As a United States corporation doing business in a foreign country, we
will be subject to economic, political and social instability and other risks
not customary to domestic corporations conducting business in the United States.
In reaction to economic or other conditions, investment policies restricting
investments by foreign corporations may be adopted or exchange controls imposed.
Our business may be adversely affected by relationships between the
United States and China which may impede our ability to operate in China. We are
a Nevada corporation and subject to the laws of the United States. Our principal
businesses are conducted through a wholly-owned subsidiary that operates in
China. Our business is directly affected by political and economic conditions in
China. Our business may be adversely affected by the diplomatic and political
relationships between the U.S. and China. These relationships may adversely
influence the Chinese government and public opinion of U.S. corporations
conducting business in that country and may affect our ability to obtain
regulatory approval to operate in China. In addition, boycotts, protests,
governmental sanctions and other actions could adversely affect our ability to
operate profitably.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This reoffer prospectus contains forward-looking statements that
involve risks and uncertainties. These statements relate to future events or our
future financial performance. In some cases, you can identify forward-looking
statements by terminology such as "may," "will," "should," "except," "plan,"
"anticipate," "believe," "estimate," "predict," "potential" or "continue," as
well as the negative of such terms or other comparable terminology. These
statements are only predictions. Actual events or results may differ materially.
In evaluating these statements, you should specifically consider various
factors, including the risks described above and in other parts of this
prospectus. These factors may cause our actual results to differ materially from
any forward-looking statement. Although we believe that the expectations
reflected in the forward-looking statements are reasonable, we cannot guarantee
future results, levels of activity, performance or achievements.
7
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of shares of
common stock by the selling stockholders.
SELLING STOCKHOLDERS
The following table shows the names of the selling stockholders, the
number of shares of common stock beneficially owned by such stockholders as of
April 23, 2004, and the number of shares of common stock that he may sell from
time to time under this reoffer prospectus. We do not know whether any of the
selling stockholders will use this prospectus in connection with the offer or
sale of any shares of our common stock or, if this prospectus is so used, how
many shares of common stock will be offered or sold.
We may amend or supplement this reoffer prospectus from time to time in
the future to update or change this list of selling stockholders and shares
which may be resold.
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Percentage of Shares
Number of Beneficially Owned (2)
Shares ----------------------------
Beneficially Shares Before After
Selling Stockholders Owned (1) Registered Offering Offering
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Brad Woods (3) 1,375,000 250,000 3.8% 4.1%
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Pedro E. Racelis III (4) 637,500 200,000 1.5% 1.9%
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Patrick So 1,175,000 1,175,000 * 3.5%
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Dexter Lombardi 1,656,667 1,656,667 * 4.9%
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Lam Fu Shiu (aka Kent Lam) 250,000 250,000 * *
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Doug Morgan 83,333 83,333 * *
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Dominic Hernon 100,000 100,000 * *
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Richard Chan 58,333 58,333 * *
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Charles Blazek 50,000 50,000 * *
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Darin Redabaugh 17,834 17,834 * *
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Michael Bowden 100,000 100,000 * *
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* Less than one percent.
(1) Represents shares owned beneficially by the named individual, including
shares that such individual has the right to acquire within 60 days of
the date of this reoffer prospectus. Includes the shares which are the
subject of this prospectus. Unless otherwise noted, all persons
referred to above have sole voting power.
8
(2) Percentages are based on 33,505,715 (comprised of 29,564,548 shares of
common stock outstanding as of April 16, 2004 plus 3,941,167 issued as
set forth herein). Where the persons listed on this table have the
right to obtain additional shares of common stock within 60 days from
April 16, 2004, these additional shares are deemed to be outstanding
for the purpose of computing the percentage of class owned by such
persons, but are not deemed to be outstanding for the purpose of
computing the percentage of any other person. Assumes the sale of all
of the shares of Common Stock owned by selling shareholder registered
hereby.
(3) Mr. Woods is the Chief Financial Officer and Interim President of the
Company.
(4) Mr. Racelis is a Vice President of the Company.
PLAN OF DISTRIBUTION
The selling stockholders may, from time to time, elect to sell all or a
portion of the shares offered under this prospectus in the over-the-counter
market. Any such transaction may be effected at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at negotiated
prices or at fixed prices. The selling stockholders may also make private sales
directly or through a broker or brokers, who may act as agent or principal.
Further, they may choose to dispose of the shares offered under this prospectus
by gift to a third party or as a donation to a charitable or other non-profit
entity. In connection with any sales, the selling stockholders and any brokers
participating in such sales may be deemed to be underwriters within the meaning
of the Securities Act. The amount of securities to be reoffered or resold by
means of this reoffer prospectus, by each person, and any other person with whom
he or she is acting in concert for the purpose of selling our securities, may
not exceed, during any three month period, the amount specified in Rule 144(e)
under the Securities Act.
Any broker-dealer participating in such transactions as agent may
receive commissions from the selling stockholders (and, if such broker acts as
agent for the purchaser of such shares, from such purchaser). Usual and
customary brokerage fees will be paid by the selling stockholders.
Broker-dealers may agree with him or her to sell a specified number of shares at
a stipulated price per share, and, to the extent such a broker-dealer is unable
to do so acting as agent for the selling stockholder, to purchase as principal
any unsold shares at the price required to fulfill the broker-dealer commitment
to them. Broker-dealers who acquire shares as principal may thereafter resell
such shares from time to time in transactions (which may involve crosses and
block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market, in negotiated transactions or otherwise at market
prices prevailing at the time of sale or at negotiated prices, and in connection
with such resales may pay to or receive commissions from the purchasers of such
shares.
9
We have advised the selling stockholders that the anti-manipulation
rules of Regulation M under the Securities Exchange Act may apply to sales of
shares in the market and to the activities of the selling stockholders and their
affiliates. In addition, we will make copies of this reoffer prospectus
available to the selling stockholders and have informed them of the possible
need for delivery of copies of this reoffer prospectus to purchasers on or prior
to sales of the shares offered under this reoffer prospectus. The selling
stockholders may indemnify any broker-dealer that participates in transactions
involving the sale of the shares against certain liabilities, including
liabilities arising under the Securities Act. Any commissions paid or any
discounts or concessions allowed to any such broker, and any profits received on
the resale of such shares, may be deemed to be underwriting discounts and
commissions under the Securities Act if any such broker-dealers purchase shares
as principal.
Any securities covered by this reoffer prospectus that qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under those rules
rather than pursuant to this reoffer prospectus.
There can be no assurance that the selling stockholders will sell any
or all of the shares of common stock offered under this reoffer prospectus.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Nevada General Corporation Law, we have broad powers to indemnify our
directors and officers against liabilities they may incur in such capacities,
including liabilities under the Securities Act. Our Articles of Incorporation
also provides (i)that we indemnify, to the fullest extent permitted by
applicable law in effect from time to time, any person against all liability and
expense (including attorneys' fees) incurred by reason of the fact that he is or
was a director or officer, is or was serving at the request of the Corporation
as a director, officer, employee, or agent of, or in any similar managerial or
fiduciary position of, another corporation, partnership, joint venture, trust or
other enterprise, and (ii) that we indemnify any person who is serving or has
served as a director, officer, employee, or agent of the Corporation to the
extent and in the manner provided in any bylaw, resolution of the shareholders
or directors, contract, or otherwise, so long as such provision is legally
permissible.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling us pursuant
to the foregoing provisions, we have been informed that in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in that act and is therefore unenforceable.
10
DESCRIPTION OF SECURITIES
General
We are authorized to issue of up to 50,000,000 common shares, $0.001
par value per share, and 1,000,000 preferred shares, $0.01 par value per share.
The following summary does not purport to be complete. You may wish to refer to
our articles of incorporation and bylaws, copies of which are available for
inspection.
Preferred Stock
Our articles of incorporation authorize the issuance of up to 1,000,000
shares of preferred stock, in classes or series, having such designations,
powers, preferences, rights, and limitations as the board of directors may from
time to time determine. As of the date of this prospectus, no classes of
preferred stock have been designated and no shares have been issued.
Common Stock
As of April 16, 2004, there were 29,564,548 shares of common stock
issued and outstanding. Our board of directors may issue additional shares of
common stock without the consent of the common stockholders.
Voting Rights. Each outstanding share of common stock is entitled to
one vote. The common stockholders 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.
No Preemptive Rights. Holders of common stock are not entitled to any
preemptive rights.
Dividends and Distributions. Holders of common stock are entitled to
receive such dividends as may be declared by our directors out of funds legally
available for dividends and to share pro rata in any distributions to holders of
common stock upon liquidation or otherwise. However, we have never paid cash
dividends on our common stock, and do not expect to pay such dividends in the
foreseeable future.
LEGAL MATTERS
Berkman, Henoch, Peterson & Peddy, P.C., Garden City, New York will
pass upon the validity of the common stock offered hereby.
EXPERTS
The financial statements of China Wireless Communications, Inc. which
cover the consolidated balance sheet as of December 31, 2003 and the related
consolidated statements of operations, stockholders' equity and cash flows for
the year ended December 31, 2003 and for the period from August 13, 2002 to
December 31, 2002 and the amounts included in the cumulative period from August
11
13, 2002 through December 31, 2003 incorporated in this reoffer prospectus by
reference from our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2003, have been so included in reliance on the report of Moores
Rowland Mazars, independent accountants, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by us with the Securities and Exchange
Commission are incorporated herein by reference except to the extent any
statement or information therein is modified, superseded or replaced by a
statement or information contained in this document or in any other subsequently
filed document incorporated herein by reference:
o our Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2003; and
o all reports and other documents subsequently filed by us
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the
Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities offered hereby 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 the filing of such
reports and documents.
We will furnish without charge to each person to whom the reoffer
prospectus is delivered, upon the oral or written request of such person, a copy
of any and all of the documents incorporated by reference (other than exhibits
to such documents). Requests should be directed to the attention of Pedro E.
Racelis III at China Wireless Communications, Inc., 1746 Cole Boulevard, Suite
225, Golden, Colorado 80401-3210, telephone (303) 277-9968.
WHERE YOU CAN FIND ADDITIONAL INFORMATION ABOUT US
We have filed with the Securities and Exchange Commission a
registration statement on Form S-8 under the Securities Act, with respect to the
common stock offered by this reoffer prospectus. As permitted by the rules and
regulations of the Commission, this reoffer prospectus, which is a part of the
registration statement, omits certain information, exhibits, schedules and
undertakings set forth in the registration statement. For further information
pertaining to our company and the common stock offered hereby, reference is made
to such registration statement and the exhibits and schedules thereto. A copy of
the registration statement may be inspected without charge at the Public
Reference Room of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
Information on the operation of the Public Reference Room can be obtained by
calling the SEC at 1-800-SEC-0330. In addition, registration statements and
certain other filings made with the Commission through its Electronic Data
Gathering, Analysis and Retrieval system, including our registration statement
and all exhibits and amendments to our registration statements, are publicly
available through the Commission's website at http://www.sec.gov.
We are subject to the information and reporting requirements of the
Exchange Act and, in accordance therewith, will file periodic reports with the
Securities and Exchange Commission.
12
-----------------------
P R O S P E C T U S
-----------------------
3,941,167
Shares of Common Stock
April 23, 2004
================================================================================
13
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents and reports filed by the Registrant with the Securities
and Exchange Commission (the "Commission") are incorporated herein by reference:
(a) Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2003, Commission File No. 333-49388.
(b) All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934 (the "1934
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 hereunder have been sold, or which deregisters all securities
then remaining unsold under this registration statement, 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.
Item 4. Description of Securities
Common Stock. As of April 16, 2004, there were 29,564,548 shares of common stock
issued and outstanding. Our board of directors may issue additional shares of
common stock without the consent of the common stockholders.
Voting Rights. Each outstanding share of common stock is entitled to one vote.
The common stockholders 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.
No Preemptive Rights. Holders of common stock are not entitled to any
preemptive rights.
Dividends and Distributions. Holders of common stock are entitled to receive
such dividends as may be declared by our directors out of funds legally
available for dividends and to share pro rata in any distributions to holders of
common stock upon liquidation or otherwise. However, we have never paid cash
dividends on our common stock, and do not expect to pay such dividends in the
foreseeable future.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
Under the Nevada General Corporation Law, the registrant has broad powers to
indemnify its directors and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act of 1933, as amended
(the "1933 Act"). The registrant's Articles of Incorporation also provide
(i)that the registrant indemnify, to the fullest extent permitted by applicable
law in effect from time to time, any person against all liability and expense
(including attorneys' fees) incurred by reason of the fact that he is or was a
director or officer, is or was serving at the request of the registrant as a
director, officer, employee, or agent of, or in any similar managerial or
fiduciary position of, another corporation, partnership, joint venture, trust or
other enterprise, and (ii) that the registrant indemnify any person who is
serving or has served as a director, officer, employee, or agent of the
registrant to the extent and in the manner provided in any bylaw, resolution of
the shareholders or directors, contract, or otherwise, so long as such provision
is legally permissible.
Item 7. Exemption from Registration Claimed
The issuances were deemed to be exempt from registration under the
Securities Act pursuant to Section 4(2) thereof, as transactions that did not
involve any public offering, or were deemed not to require registration under
the Securities Act of 1933, as amended, since such issuances did not involve the
sale of such securities. All selling security holders are deemed to be
sophisticated with regard to an investment in the registrant. No underwriters
were used.
Item 8. Exhibits
--------------------------------------------------------------------------------
Exhibit
Number Description of Document
--------------------------------------------------------------------------------
4.1 Articles of Incorporation (incorporated by reference to Exhibit
2.1 to the registrant's registration statement on Form SB-1
filed on November 6, 2000, File No. 333-49388)
--------------------------------------------------------------------------------
4.2 Bylaws (incorporated by reference to Exhibit 2.2 to the
registrant's registration statement on Form SB-1 filed on
November 6, 2000, File No. 333-49388)
--------------------------------------------------------------------------------
4.3 Amendment to Employment Agreement between China Wireless
Communications, Inc. and Brad Woods.
--------------------------------------------------------------------------------
4.4 Employment Agreement between China Wireless Communications,
Inc. and Pedro E. Racelis III
--------------------------------------------------------------------------------
4.5 Consulting Agreement between China Wireless Communications,
Inc. and Patrick So
--------------------------------------------------------------------------------
4.6 Consulting Agreement between China Wireless Communications,
Inc. and Dexter Lombardi
--------------------------------------------------------------------------------
4.7 Consulting Agreement between China Wireless Communications,
Inc. and Lam Fu Shiu (aka Kent Lam)
--------------------------------------------------------------------------------
15
--------------------------------------------------------------------------------
4.8 Consulting Agreement between China Wireless Communications,
Inc. and Doug Morgan
--------------------------------------------------------------------------------
4.9 Consulting Agreement between China Wireless Communications,
Inc. and Dominic Hernon
--------------------------------------------------------------------------------
4.10 Consulting Agreement between China Wireless Communications,
Inc. and Richard Chan
--------------------------------------------------------------------------------
4.11 Consulting Agreement between China Wireless Communications,
Inc. and Charles Blazek
--------------------------------------------------------------------------------
4.12 Consulting Agreement between China Wireless Communications,
Inc. and Darin Redabaugh
--------------------------------------------------------------------------------
4.13 Consulting Agreement between China Wireless Communications,
Inc. and Michael Bowden
--------------------------------------------------------------------------------
5.1 Opinion of Berkman, Henoch, Peterson & Peddy, P.C.
--------------------------------------------------------------------------------
24 Consent of Moores Rowland Mazars
--------------------------------------------------------------------------------
Item 9. Undertakings
The undersigned registrant hereby undertakes: (1) to file, during any period in
which offers or sales are being made, a post-effective amendment to this
registration statement: (i) to include any prospectus required by section
10(a)(3) of the 1933 Act; (ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20% change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and (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; provided, however, that clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in
a post-effective amendment by those clauses is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the 1934 Act
that are incorporated by reference into this registration statement; (2) that,
for the purpose of determining any liability under the 1933 Act, 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; and
(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.
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The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the 1933 Act, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the 1934 Act that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liability arising under the 1933 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 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.
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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 filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Golden, State of Colorado, on April 23, 2004.
China Wireless Communications, Inc.
By: /s/ BRAD WOODS
---------------------------------
Brad A. Woods
Interim President and CEO
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
Interim President, Chief Executive
Officer and Director (Principal
/s/ BRAD A. WOODS Executive Officer) April 23, 2004
------------------------
Brad A. Woods
/s/ HENRY ZAKS April 23, 2004
------------------------
Henry Zaks Director
/s/ DR. ALLAN RABINOFF Director April 23, 2004
------------------------
Dr. Allan Rabinoff
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