U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ALPHA WIRELESS BROADBAND, INC.
(Exact name of registrant as specified in charter)
Nevada 33-0845463
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Albert Reda, President Marc R. Tow, Esq.
Alpha Wireless Broadband, Inc. Marc R. Tow & Associates APC
10120 S. Eastern Avenue, #200 3920 Birch Street, Suite 102
Henderson, Nevada 89052 Newport Beach, CA 92660
(775) 588-2387 (949) 975-0544
--------------------------------- ---------------------------------
(Address and telephone number of (Name, address and telephone
Registrant's Principal Executive Offices) number of agent for service)
2005 Employees and Consultants Stock Plan I
Albert Reda, President
Alpha Wireless Broadband, Inc, 10120 S. Eastern Avenue, #200,
Henderson, Nevada 89052
Telephone (775) 588-2387
-------------------------------------------
(Full title of the plan)
Copies of all communications to:
Marc R. Tow & Associates, APC
3920 Birch Street, Suite 102, Newport Beach, California 92660
Telephone (949) 975-0544 Facsimile (949) 975-0547
Calculation of Registration Fee
Proposed
maximum Proposed
Title of offering maximum Amount of
securities to Amount to be price per offering registration
be registered registered share price fee
Common Stock,
par value
0.001 1,000,000,000(1) $ 0.0002(2) $200,000(2) $ 23.54
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) The proposed maximum offering price per share of Common Stock and the
proposed maximum aggregate offering price are calculated solely for the purpose
of determining the registration fee pursuant to Rule 457(h) under the Securities
Act of 1933. The fee for the shares being registered is based upon the closing
bid price of the Common Stock on January 7, 2005, as reported on the OTC
Bulletin Board.
TABLE OF CONTENTS
-----------------
PART I INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
--------------------------------------------------------------
Item 1. Plan Information
---------------------------
Item 2. Registrant Information and Employee Plan Annual Information
---------------------------------------------------------------------------
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
-----------------------------------------------------------------
Item 3. Incorporation of Documents by Reference
-----------------------------------------------------
Item 4. Description of Securities
-------------------------------------
Item 5. Interests of Named Experts and Counsel
-----------------------------------------------------
Item 6. Indemnification of Directors and Officers
-------------------------------------------------------
Item 7. Exemption for Registration Claimed
-----------------------------------------------
Item 8. Exhibits
------------------
Item 9. Undertakings
----------------------
SIGNATURES
----------
EXHIBIT 4
----------
EXHIBIT 5
----------
EXHIBIT 23.1
-------------
EXHIBIT 23.2
-------------
EXHIBIT 24
-----------
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
See Item 2 below.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The documents containing the information specified in Part I, Items 1 and 2,
will be delivered to each of the participants in accordance with Form S-8 and
Rule 428 promulgated under the Securities Act of 1933. The participants shall be
provided a written statement notifying them that upon written or oral request
they will be provided, without charge, (i) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (ii) other
documents required to be delivered pursuant to Rule 428(b). The statement will
inform the participants that these documents are incorporated by reference in
the Section 10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be directed.
A copy of any document or part hereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to 10120 S. Eastern Avenue, #200 Henderson, Nevada 89052.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Company under the Securities Exchange Act
of 1934 (the "Exchange Act") are incorporated herein by reference:
(a) The Registrant's latest annual report on Form 10-KSB/A and any amendments
thereto for the fiscal year ended June 30, 2004.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the financial statements
contained in the Form 10KSB and any amendments thereto referred to in (a) above.
In addition, all documents subsequently filed pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment 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 into this registration statement and to be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in a subsequently filed document which
is also incorporated by reference herein modified or superseded such statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Other than as set forth below, no named expert or counsel was hired on a
contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
Marc R. Tow will receive 70,000,000 of Common stock of the Registrant. These
shares are being paid pursuant to the Registrant "2005 Employees and Consultants
Stock Plan I", for legal service previously rendered under attorney client
contract in connection with Corporate, securities and litigation work for the
Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Limitation of Liability.
(a) Articles of Incorporation and Bylaws.
Neither the articles of incoproration nor bylaws of the Registrant contain any
provisions with regard to the liability of an officer and director.
(b) Nevada Revise Statutes.
"NRS 78.138 Directors and officers; Exercise of powers; performance of duties;
presumptions and considerations; liability to corporation and stockholders.
(7) Except as otherwise provided in NRS 35.230, 90.660, 91.250,452.200,
452,270, 668.045 and 694A.030, a director or officer is not individually liable
to the corporation or its stockholders for any damages as a result of an act or
failure to act in his capacity as a director unless it is proven that:
(a) His act or failure to act constituted a breach of his fiduciary as a
director or officer; and
(b) His breach of those duties involved intentional misconduct, fraud or a
knowing violation of law"
Indemnification.
(a) Articles of Incorporation and Bylaws.
There are no provisions in the articles of incorporation with regard to
indemnification. The bylaws of the Registrant provide the following with respect
to indemnification; Corporation shall indemnify to the fullest extent permitted
by law each person that such law grants the Corporation the power to indemnify."
(b) Nevada Revised Statutes.
"NRS 78.7502 Discretionary and mandatory indemnification of officers, directors,
and employees and agents; General provisions.
1. A corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he is
or was a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with the action, suit or
proceeding if he:
(a) Is not liable pursuant to NRS 78.138 [directors and officers duty to
exercise their powers in good faith and with a view to the interests of the
corporation], or
(b) Acted in good faith and in a manner which he reasonably believe to be in
or not opposed to the best interest of the corporation, and , with respect to an
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person is liable pursuant to NRS
78.138 or did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, or that , with
respect to any criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
2. A corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to a procure a judgment in its favor by a reason
of the fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interest of the corporation.
Indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation for amounts
paid in settlement to the corporation, unless and only to the extent that the
court in which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for such
expenses as the court deems proper.
3. To the extent that a director, officer, employee or agent of a corporation
has been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsection 1 amd2, or in defense of any claim, issue
or matter therein, the corporation shall indemnify him against expenses,
including attorneys' fees, actually and reasonably incurred by him in connection
with the defense.
NRS 78.751 Authorization required for discretionary indemnification; advancement
of expenses; limitation on indemnification and advancement of expenses;
1. Any discretionary indemnificati0on pursuant to NRS 78.7502, unless
ordered by a court or advance pursuant to subsection 2, may be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer,, employee or agent is proper in the
circumstances. The determination must be made;
(a) By the stockholders;
(b) By the board of directors by a majority vote or a quorum consisting of
directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent legal
counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the action,
suit or proceeding cannot be obtained, by independent legal counsel in a written
opinion.
2. The articles of incorporation, the bylaws or an agreement made by the
corporation may provide that the expenses of officers and directors incurred in
defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court jurisdiction that he is not entitled to be indemnified by the corporation.
The provisions of this subsection do not affect any rights to advancement of
expenses to which corporate personnel other than directors or officers may be
entitled under any contract or otherwise by law.
3. The indemnification pursuant to NRS 78.7502 and advancement of expenses
authorized in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses maybe entitled under the articles of
incorporation or any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, for either an action in his official capacity or an
action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to NRS 78.7502 or for the
advancement of expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or office if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud of a knowing violation
of the law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
NRS 78.752 Insurance and other financial arrangement against liability of
directors, officers, employees and agents;
1. A corporation may purchase=e and maintain insurance or make other
financial arrangement on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
2. The other finance=al arrangement made by the corporation pursuant to
sucsection1 may include the following;
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by granting a security
interest of other lien on any assets of the corporation.
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide protection
for a person adjudged by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court
3. Any insurance or other financial arrangement made on behalf of a person
pursuant to this section may be provided by the corporation or any other person
approve by the board of directors, even if all or part of the other person's
stock or other securities is owned by the corporation.
4. In the absence of fraud;
(a) The decision of the board of directors as to the propriety of the terms
and conditions of any insurance of other financial arrangement made pursuant to
this section and the choice of the arrangement made pursuant to this section and
the choice of the person to provide the insurance or other financial arrangement
is conclusive; and
(b) The insurance or other financial arrangement:
(i) Is not void or voidable; and
(ii) Does not subject any director approving it to personal liability for
his action, even if a director approving the insurance for his action, even if a
director approving the insurance or other financial arrangement is a beneficiary
of the insurance or other financial arrangement is a beneficiary of the
insurance or other financial arrangement.
5. A corporation or its subsidiary which provide self-insurance for itself
or for another affiliated corporation pursuant to this section is not subject to
the provisions of Title 57 of NRS."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits required by Item 601 of Regulation S-B, and an index thereto, are
attached.
ITEM 9. UNDERTAKINGS
The undersigned Company hereby undertakes:
A. (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 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;
(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 the time shall be deemed to be the initial bona
fide offering thereof.
(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.
B. That, for the purpose 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 Exchanges 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 referent
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of the securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. To deliver of 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 of Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not set forth in
the prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent of given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
D. That insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other that 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 of 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.
SIGNATURES
The Registrant. 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 Newport Beach, State of California, on January 12,
2005.
ALPHA WIRELESS BROADBAND, INC.
/s/ Albert R. Reda
------------------
Albert R. Reda
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
date indicated.
ALPHA WIRELESS BROADBAND, INC.
/s/ Albert R. Reda
---------------------
Albert R. Reda, President
Date: January 12, 2005
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newport Beach,State of
California, on January 12, 2005.
2004 Employees and Consultants Stock Plan III
By: /s/ Albert R. Reda
--------------------
Albert R. Reda, Chairman of the Board of Directors
SPECIAL POWER OF ATTORNEY
The undersigned constitute and appoint Albert R. Reda their true and lawful
attorney-in-fact and agent with full power of substitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Form S-8 Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the U.S. Securities and Exchange Commission, granting
such attorney-in-fact the full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that such attorney-in-fact may
lawfully do or cause to be done by virtue hereof.
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
date indicated:
Signature Title Date
/s/ Albert R. Reda Chief Executive Officer/ January 12, 2005
--------------------- Secretary/ Treasurer/
Albert R. Reda Chairman
EXHIBIT INDEX
Exhibit
No. Description
4 2005 Employees and Consultants Stock Plan I, (filed herewith).
5 Opinion Re: Legality (filed herewith).
23.1 Consent of Accountants (filed herewith).
23.2 Consent of Counsel (included in Exhibit 5).
24 Special Power of Attorney (see signature page).