As filed with the Securities and Exchange Commission on December 23, 2002
Registration No. 333-______________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SIRICOMM, INC.
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(Exact name of issuer as specified in its charter)
Delaware 62-1386759
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2900 Davis Boulevard, Suite 130, Joplin, Missouri 64804
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(Address of Principal Executive Offices) (Zip Code)
Common Stock issued as compensation
to Consultants pursuant to written agreement
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(Full title of the Plan)
Henry P. Hoffman, CEO
SiriCOMM, Inc.
2900 Davis Boulevard, Suite 130
Joplin, MO 64804
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(Name and address of agent for service)
(417) 626-9961
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(Telephone number, including area code of agent for service)
copies to:
Sommer & Schneider LLP
595 Stewart Avenue, Suite 710
Garden City, NY 11530
(516) 228-8181
Approximate date of commencement of proposed sale to the public: Upon
the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee(1)
---------- ---------- ---------- ----------- ------------
Common Stock 716,000(2) $1.75 $1,253,000 $115.28
TOTAL $1,253,000 $115.28
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(1) The fee with respect to these shares has been calculated pursuant to Rules
457(h) and 457(c) under the Securities Act of 1933 and based upon the last
price per share of the Registrant's Common Stock on December 20, 2002, a
date within five (5) days prior to the date of filing of this Registration
Statement, as reported by the OTC-Bulletin Board.
(2) Issuable to consultants of the Registrant.
Documents Incorporated by Reference [X] Yes [ ] No
EXPLANATORY NOTE
The Reoffer Prospectus, filed as part of this Registration Statement,
has been prepared in accordance with the requirements of Form S-3 and will be
used for offers of Common Stock of SiriCOMM, Inc. (the "Company"), by persons
who may be deemed to be affiliates of the Company (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended).
ii
CROSS REFERENCE SHEET
Between Items of Form S-3 and Prospectus
Pursuant to Rule 501(b) of Regulation S-K
Registration Statement
Item and Heading Location in Prospectus
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus......................... Cover Page
2. Inside Front and Outside Back
Cover Pages of Prospectus........................ Inside Cover Page
3. Summary Information, Risk
Factors and Ratio of Earnings
to Fixed Charges................................. Introduction
4. Use of Proceeds.................................. Not applicable
5. Determination of Offering Price.................. Not applicable
6. Dilution......................................... Not applicable
7. Selling Security Holders......................... Cover Page, Selling
Shareholders
8. Plan of Distribution............................. Selling
Shareholders
9. Description of Securities to be Registered........ Documents
Incorporated by
Reference
10. Interests of Named Experts
and Counsel....................................... Legal Opinion
and Experts
11. Material Changes.................................. Not applicable
12. Incorporation of Certain
Information by Reference.......................... Documents
Incorporated by
Reference
13. Disclosure of Commission
Position on Indemnification of
Securities Act Liabilities........................ Indemnification
iii
REOFFER PROSPECTUS
SIRICOMM, INC.
716,000 Shares
Common Stock
$.001 par value
______________
This Prospectus is being used in connection with the offering from time
to time by certain shareholders of SiriCOMM, Inc. ("Selling Shareholders") or
their successors in interest of shares of the Common Stock ($.001 par value) of
SiriCOMM, Inc. ("Common Stock") which will be issued as compensation to certain
consultants of the Company.
The Common Stock may be sold from time to time by the Selling
Shareholder or by pledgees, donees, transferees, or other successors in
interest. 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 will 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. SiriCOMM, Inc. will not receive any of the proceeds from the sale of
these shares, although it has paid the expenses of preparing this Prospectus and
the related Registration Statement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
___________________
The last sale price of SiriCOMM, Inc. Common Stock as reported by the
OTC-Bulletin Board on December 20, 2002 was $1.75.
___________________
The date of this Prospectus is December 23, 2002.
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NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
INFORMATION OR TO MAKE REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING CONTAINED HEREIN AND, IF GIVEN OR MADE INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFERING OF ANY SECURITIES OTHER
THAN THOSE TO WHICH IT RELATES OR IN ANY STATE OR OTHER JURISDICTION IN WHICH
SUCH OFFERING MAY NOT LAWFULLY BE MADE. 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 THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF OR SINCE THE DATES AS OF WHICH INFORMATION IS SET FORTH HEREIN.
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-8 under the
Securities Act with respect to the Common Stock offered hereby. This Prospectus,
which constitutes a part of the Registration Statement, omits certain of the
information contained in the Registration Statement and the exhibits and
schedules thereto on file with the Commission pursuant to the Securities Act and
the rules and regulations of the Commission thereunder. For further information
with respect to the Company and its Common Stock, reference is made to the
Registration Statement and the exhibits and schedules thereto. Statements
contained in this Prospectus regarding the contents of any agreement or other
document filed as an exhibit to the Registration Statement are not necessarily
complete, and in each instance reference is made to the copy of such agreement
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference. The Registration Statement,
including the exhibits and schedules thereto, can be inspected and copied at the
Commission's offices as described above.
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files annual and quarterly reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549, as well as at
the Commission's Regional Office at Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained at
prescribed rates from the Public Reference Room of the Commission at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Information concerning
the operation of the Public Reference Room may be obtained by calling the
Commission at 1-800-SEC-0330. The Commission maintains an Internet site at
http://www.sec.gov that contains reports, proxy and information statements and
other information regarding registrants, including the Company, that file
electronically with the Commission.
_________________________
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The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any and all of the information that has been or may be incorporated by reference
in this Prospectus but is not delivered with this Prospectus (other than
exhibits to such information unless such exhibits are incorporated by reference
in this Prospectus). Such requests may be mailed to SiriCOMM, Inc., 2900 Davis
Boulevard, Suite 130, Joplin, Missouri 64804, Attention: Tom Noland, or may be
made by telephone to Mr. Noland at (417) 626-9961.
3
SELLING SHAREHOLDERS
The following table sets forth the names of the Selling Shareholders,
the number of shares of Common Stock owned by the Selling Shareholders, the
number of shares of Common Stock to be offered by the Selling Shareholders and
the number of shares of Common Stock the Selling Shareholders will own after the
completion of this offering.
Beneficial Ownership Beneficial Ownership
Name of Prior to Offering After Offering
Selling Shareholder Shares Percentage Shares(1) Percentage
Richard Diamond 179,000 1.7% -0- --
Donald Mastropietro 179,000 1.7% -0- --
Terry Haynes 179,000 1.7% -0- --
Ronald Rule, Jr. 179,000 1.7% -0- --
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(1) Assumes the sale of all of the shares of Common Stock owned by the Selling
Shareholder.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents are incorporated in this Prospectus by
reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 2001;
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
December 31 2001;
(c) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2002;
(d) The Company's Current Report on Form 8-K for the event dated
May 7, 2002 filed with the SEC on May 7, 2002;
(e) The Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2002;
(f) Preliminary 14C Information Statement filed July 11, 2002;
(g) Revised Preliminary 14C Information Statement filed August 19, 2002;
(h) Amendment No. 2 - Preliminary 14C Information Statement filed
October 9, 2002;
(i) Definitive 14C Information Statement filed October 29, 2002;
(j) The Company's Current Report on Form 8-K for the event dated
November 21, 2002 filed with the SEC on December 3, 2002; and
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(k) All other documents filed by the Company after the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to the Registration Statement which indicates
that all securities offered have been sold or which deregisters all
securities then remaining in the Registration Statement and to be part
thereof from the date of filing of such documents.
EXPERTS
The consolidated financial statements of the Company at September 30,
2001 and 2000 and for the two years ended September 30, 2001 incorporated by
reference herein and in the registration statement have been audited by Aidman
Piser & Company, P.A., independent auditor as set forth in their respective
report thereon incorporated herein by reference, and is included in reliance
upon such report given on the authority of such firm as experts in accounting
and auditing.
LEGAL OPINION
The legality of the Common Stock to be offered hereby has been passed
upon for the Company by the firm of Sommer & Schneider LLP, 595 Stewart Avenue,
Garden City, NY 11530.
INDEMNIFICATION
The Certificate of Incorporation and By-laws of the Company provide
that the Company shall indemnify to the fullest permitted by Delaware law any
person whom it may indemnify thereunder, including directors, officers,
employees and agents of the Company. Such indemnification (other than as ordered
by a court) shall be made by the Company only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct i.e., such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the Company. Advances for such indemnification may be made pending such
determination. Such determination shall be made by a majority vote of a quorum
consisting of disinterested directors, or by independent legal counsel or by the
stockholders. In addition, the Certificate of Incorporation provides for the
elimination, to the extent permitted by Delaware law, of personal liability of
directors to the Company and its stockholders for monetary damages for breach of
fiduciary duty as directors.
The Company has also agreed to indemnify each director and executive
officer pursuant to an Indemnification Agreement with each such director and
executive officer from and against any and all expenses, losses, claims, damages
and liability incurred by such director or executive officer for or as a result
of action taken or not taken while such director or executive officer was acting
in his capacity as a director, officer, employee or agent of the Company. The
obligations of the Company for indemnification is limited to the extent provided
in the Delaware General Corporation Law and is also limited in situations where,
among others, the indemnitee is deliberately dishonest, gains any profit or
advantage to which he is not legally entitled or is otherwise indemnified.
5
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of 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 its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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PART II
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference in this
Registration Statement and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 2001;
(b) The Company's Quarterly Report on Form 10-QSB for the quarter ended
December 31 2001;
(c) The Company's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2002;
(d) The Company's Current Report on Form 8-K for the event dated
May 7, 2002 filed with the SEC on May 7, 2002;
(e) The Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 2002;
(f) Preliminary 14C Information Statement filed July 11, 2002;
(g) Revised Preliminary 14C Information Statement filed August 19, 2002;
(h) Amendment No. 2 - Preliminary 14C Information Statement filed
October 9, 2002;
(i) Definitive 14C Information Statement filed October 29, 2002;
(j) The Company's Current Report on Form 8-K for the event dated
November 21, 2002 filed with the SEC on December 3, 2002; and
(k) All other documents filed by the Company after the date of this
Registration Statement under Section 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to the Registration Statement which indicates
that all securities offered have been sold or which deregisters all
securities then remaining in the Registration Statement and to be part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable
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Item 5. Interest of Named Experts and Counsel.
Certain legal matters in connection with the shares being registered
herein will be passed upon for the Company by the Law Offices of Sommer &
Schneider LLP, 595 Stewart Avenue, Suite 710, Garden City, NY 11530.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation and By-laws of the Company provide
that the Company shall indemnify to the fullest permitted by Delaware law any
person whom it may indemnify thereunder, including directors, officers,
employees and agents of the Company. Such indemnification (other than as ordered
by a court) shall be made by the Company only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct i.e., such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interest of
the Company. Advances for such indemnification may be made pending such
determination. Such determination shall be made by a majority vote of a quorum
consisting of disinterested directors, or by independent legal counsel or by the
stockholders. In addition, the Certificate of Incorporation provides for the
elimination, to the extent permitted by Delaware law, of personal liability of
directors to the Company and its stockholders for monetary damages for breach of
fiduciary duty as directors.
The Company has also agreed to indemnify each director and executive
officer pursuant to an Indemnification Agreement with each such director and
executive officer from and against any and all expenses, losses, claims, damages
and liability incurred by such director or executive officer for or as a result
of action taken or not taken while such director or executive officer was acting
in his capacity as a director, officer, employee or agent of the Company. The
obligations of the Company for indemnification is limited to the extent provided
in the Delaware General Corporation Law and is also limited in situations where,
among others, the indemnitee is deliberately dishonest, gains any profit or
advantage to which he is not legally entitled or is otherwise indemnified.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of 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 its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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Item 7. Exemption From Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Number Description
4.0 Consulting Agreement dated December 12, 2002, between the Company and
RJ Diamond Consulting, Inc.
5.0 Consent and Opinion of Sommer & Schneider LLP
24.0 Consent of Aidman, Piser & Company, P.A.
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(b) 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; and
(c) 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 paragraphs (1)(a) and (1)(b) do not
apply if the registration statement is on Form S-3 or Form S-8
and the information required to be included in a
post-effective amendment by this paragraphs is contained in
periodic reports filed by the registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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(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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus
and furnished pursuant to and meeting the requirements of Rule 14a-3 or
Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Item 310(b)
of Registration S-B is not set forth in the prospectus, to deliver, or
cause to be delivered, to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information.
(6) To deliver or cause to be delivered with the prospectus to each
employee to whom the prospectus is sent or given, a copy of the
registrant's annual report to stockholders for its last fiscal year,
unless such employee otherwise has received a copy of such report, in
which case the registration shall state in the prospectus that it will
promptly furnish, without charge, a copy of such report on written
request of the employee. If the last fiscal year of the registrant has
ended within 120 days prior to the use of the prospectus, the annual
report of the registrant for the preceding fiscal year may be so
delivered, but within such 120-day period the annual report for the
last fiscal year will be furnished to each such employee.
(7) To transmit or cause to be transmitted to all employees participating
in the Plans who do not otherwise receive such material as stockholders
of the registrant, at the time and in the manner such material is sent
to its stockholders, copies of all reports, proxy statements and other
communications distributed to its stockholders generally.
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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 Joplin, State of Missouri, on December 12, 2002.
SIRICOMM, INC.
/s/ Henry P. Hoffman
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Henry P. Hoffman, Chairman,
President and CEO
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
Signatures Position Date
/s/ Henry P. Hoffman Chairman, President and December 12, 2002
Henry P. Hoffman Chief Executive Officer
/s/ David N. Mendez Executive Vice President - December 12, 2002
David N. Mendez Sales and Marketing and
Director
/s/ Kory S. Dillman Executive Vice President - December 12, 2002
Kory S. Dillman Internet Business Develop.
and Director
/s/ Tom Noland Executive Vice President - December 12, 2002
Tom Noland Administration, General
Counsel, Secretary and
Director
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