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TYPE: S-8 OTHERDOC
SEQUENCE: 1
FILENAME: point9_s8-101501.txt
OTHERDOC AVAILABLE Series=point9_s8 101501.txt Ver="": Document is copied.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------------
37Point9
(Exact Name of Registrant as specified in its charter)
Nevada 86-0889096
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
11665 Avena Place Ste. 209A 92128
San Diego, CA (Zip Code)
(Address of Principal executive offices)
Compensation and Consulting Agreements
(full name of the plan)
Ray Warren
2950 E. Flamingo Road, Ste. F
Las Vegas, NV 89121
(Name and address of agent for services)
(702) 214-8440
(Telephone number, including area code, of agent for services)
CALCULATION OF REGISTRATION FEE
================================================================================
Title Of Proposed Proposed
Securities Maximum Maximum Amount of Amount Of
To Be Amount To Be Offering Price Aggregate Offering Registration
Registered Registered Per Share Price Fee
--------------------------------------------------------------------------------
Common 47,575,000(1) $0.00625(2) $297,343.75 $74.34
================================================================================
(1) Represents shares to be issued pursuant to employment, consulting and
professional service agreements for continued services by officers, attorneys,
directors and consultants to Registrant, including services related to sales and
marketing of the Company's products and services; and seeking joint ventures and
potential acquisitions; all of the foregoing in furtherance of the Registrant's
business.
(2) Pursuant to Rule 457[h], the maximum aggregate offering price (estimated
solely for the purpose of calculating the registration fee based upon the
average of the bid and asked price of the Registrant's Common Stock as of
October 11, 2001.)
PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The document(s) containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428 (b) (1). Such documents need
not be filed with the Commission either as part of this registration statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in the registration
statement pursuant to Item 3 of Part II of this form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
This Registration Statement on Form S-8 (the "Registration Statement") of
37Point9, a Nevada corporation,(the "Registrant") covers 47,575,000 shares of
the Registrant's common stock, par value $0.001 per share ("Common Stock").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 2. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Registrant's Form 10-KSB filed on April 16, 2001 and the
Registrant's Quarterly Report on Form 10-QSB for the quarter ended June 30,
2001.
In addition to the foregoing, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment indicating that all of the
securities offered hereunder have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference in
this Registration Statement shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained
herein or in any subsequently filed document that is also incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 3. Description of the Securities.
As of August 31, 2001, the Registrant has authority to issue 400,000,000
shares of common stock, at a par value of $.001 per share, and 50,000,000 shares
of preferred stock at $.001 par value. The Registrant has, as of October 11,
2001, 142,934,973 shares of common stock outstanding. The Registrant's Articles
of Incorporation provide that common stock may be issued from time to time by
the Board of Directors without action by the stockholders. Further, the Articles
of Incorporation provides that the Board of Directors may issue stock for
consideration as may be fixed by the Board of Directors from time to time. The
Registrant has not paid any dividends on its common stock. There are no
provisions, other than as may be set forth in the Nevada Revised Statutes, that
prohibit or limit the payment of dividends. There are no provisions in the
Registrant's articles or by laws that would delay, defer or prevent a change in
control of the Company.
2
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Officers and Directors.
The Registrant's By-Laws provides that the Company will indemnify its
directors and executive officers and may indemnify its other officers,
employees, and agents to the fullest extend permitted under Nevada law. The
Registrant is also empowered under its By-Laws to enter into indemnification
agreements with its directors and officers and to purchase insurance on behalf
of any person it is required or permitted to indemnify.
The Registrant's Articles of Incorporation provide that the Company's
directors will not be personally liable to the Company or any of its
stockholders for damages for breach of the director's fiduciary duty as a
director or officer involving any act or omission of any such director or
officer. Each director will continue to be subject to liability for breach of
the director's fiduciary duties to the Company for acts and omissions that
involve intentional misconduct, fraud or a knowing violation of law, or the
payment of dividends in violation of Nevada corporate law. Further, directors of
the Company may still be held liable under any other laws, such as federal
securities laws.
Section 78.7502(1) of the Nevada Revised Statutes authorizes, in pertinent
part, corporations to indemnify, at its discretion, 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 his 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
directors, officer or employee of another corporation, partnership, joint
venture, trust or enterprise.
Further Section 78.7502(2) of the Nevada Revised Statutes authorizes, in
pertinent part, corporations to indemnify, at its discretion, any person who is
or was a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he 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.
Indemnification pursuant to this section is contingent upon the director,
officer, employee or agent acting in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation.
The scope of the statutory indemnification provided for under Nevada law
extends to expenses, including attorney's fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by the director, officer,
employee or agent of the corporation.
Nevada Revised Statute 78.751 provides that a corporation may exercise its
discretion in granting such immunity by majority vote of the board of directors,
or through express provisions of a corporation's by-laws or articles of
incorporation.
3
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1 Opinion of Tad Mailander, Esq.
23.1 Consent of WEINBERG & COMPANY, P.A.
23.2 Consent of Tad Mailander, Esq. (included in 5.1)
24.1 Power of Attorney (included in signature page)
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) 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.
(b) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement.
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remains unsold at the termination of
the offering.
(d) That for the purpose of determining liability under the Securities Act
of 1933, as amended, 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.
(e) The Undersigned Registrant hereby undertakes that, for the purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's Annual Report pursuant to Section 13(a) or 15(d) of
the Securities Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated herein 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.
(f) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, 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
against such liabilities (other than the payment by the Registrant of expenses
paid or incurred 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 a 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.
4
SIGNATURES
The Registrant, pursuant to the requirements of the Securities Act of 1933,
as amended, 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, duly
authorized individual, in the City of San Diego, State of California, on the
11th day of October, 2001.
37POINT9
/S/ CHARLES KALLMANN
--------------------------------------
By: Charles Kallmann
Title: Chairman of the Board, Director
5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Charles Kallmann his true and lawful
attorney-in-fact and agent, with full power of substitution and re-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 Registration
Statement on Form S-8, and to file the same with all exhibits thereto and all
documents in connection therewith, with the Securities and Exchange Commission,
granting said attorney-in-fact and agent 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 to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registration Statement has been signed by the following persons in the
capacities on the eleventh day of October, 2001.
SIGNATURE TITLE
--------- -----
/s/ Charles Kallmann Chairman of the
-------------------- Board and Director
Charles Kallmann
/s/ John Rolls Secretary, Director
--------------------
John Rolls
/s/ Douglas P. Brown Director
--------------------
Douglas P. Brown
6
EXHIBIT INDEX
Exhibit Number Item
-------------- ----
5.1 Opinion of Tad Mailander, Esq.
23.1 Consent of WEINBERG & COMPANY, P.A.
23.2 Consent of Tad Mailander, Esq. (included in 5.1)
24.1 Power of Attorney (included in signature page)
7
TYPE: EX-5.1 OTHERDOC
SEQUENCE: 3
FILENAME: point9_ex5-1.txt
OTHERDOC AVAILABLE Series=point9_ex5 1.txt Ver="": Document is copied.
EXHIBIT 5.1
================================================================================
October 11, 2001
37Point9, Inc.
11665 Avena Place, Ste. 209 A
San Diego, CA 92128
Ladies and Gentlemen:
You requested that I render an opinion as to the legality of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"), on behalf of 37Point9 (the "Company"), relating to an
aggregate of 47,575,000 shares of the Company's Common Stock, $0.001 par value,
said shares to be issued to various business entities and individuals providing
professional and consulting services to the Company under written consulting
agreements.
As you are aware, a portion of the shares to be issued pursuant to the
Registration Statement are to be issued to me for prospective services rendered
to the Company. Further, and as you are also aware, no services to be performed
and billed to you by this office are in any way related to "capital raising"
transactions paid for by securities issued pursuant to this Registration
Statement or my written compensation agreement thereunder. I further note that
the aggregate amount of securities paid to this office for services rendered do
not exceed $50,000.00.
In connection with rendering my opinion, which is set forth below, I have
reviewed and examined originals or copies of the following documents, to wit:
1. Articles of Incorporation of the Company, along with any amendments
thereto.
2. The Company's By-Laws.
3. The Registrant's Form 10-KSB filed on April 16, 2001 and the
Registrant's Quarterly Report on Form 10-QSB for the quarter ended June
30, 2001.
4. The consent of the Board of Directors agreeing to entering into various
written consulting agreements for consulting and professional services,
and the issuance of this Registration Statement.
I have also examined such corporate records, other documents, and such
questions of law as I have considered necessary or appropriate for the purposes
of this opinion. In all instances, I have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to me as originals, the conformity with the original
documents of all documents submitted to me as certified or photostatic copies,
and the authenticity of the originals of such copies. I have further assumed
that the recipients of these securities under the Registration Statement are
performing bona fide consulting services consistent with the Act and the Form
S-8; that none of the services performed by the recipients shall be related to
capital raising transactions; and, that none of the services rendered by the
consultants and advisors directly or indirectly promote or maintains a market
for the registrant's securities, as such would be contrary to Securities Act of
1933, as well as the rules and opinions of the Securities and Exchange
Commission, all of which we have discussed.
Based on the foregoing, and in reliance thereon, it is my opinion that all
necessary corporate proceedings by the Company have been duly taken to authorize
the issuance of the Shares pursuant to the Consulting Agreements covered by the
Form S-8, and that the Shares being registered pursuant to the Registration
Statement, when issued and earned under the Consulting Agreements, will be duly
authorized, validly issued, fully paid and non- assessable.
This opinion is expressly limited in scope to the securities described
herein and which are to be expressly covered by the Registration Statement, and
does not cover any subsequent issuances of any securities made in the future
pursuant to any other plans, if any, pertaining to services performed in the
future. Any such transactions are required to be included in a new registration
statement or a post-effective amendment to the above referenced Registration
Statement, which will be required to include a new or revised opinion concerning
the legality of the securities to be issued.
Further, insofar as this opinion refers to the corporate laws of the State
of Nevada, and the securities laws, rules and regulations of the United States,
I express no opinion with respect to the laws, regulations or rules of any other
jurisdiction.
I consent to the filing of this opinion with the Commission as an exhibit
to the above referenced Registration Statement; however, this opinion is not to
be used, circulated, quoted or otherwise referred to for any other purpose
without my prior written consent.
This opinion is based upon my knowledge of the law and facts as of the date
hereof and I assume no duty to communicate with you with regard to any matter
which may hereafter come to my attention.
Very truly yours,
/s/ Tad Mailander, Esq.
-----------------------
Tad Mailander, Esq.
TYPE: EX-23.1 OTHERDOC
SEQUENCE: 4
FILENAME: point9_ex23-1.txt
OTHERDOC AVAILABLE Series=point9_ex23 1.txt Ver="": Document is copied.
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to incorporation by reference in the foregoing Registration Statement
of 37Point9 on Form S-8 of our report dated April 10, 2001, which is included in
the Annual Report on Form 10-KSB for the years ended December 31, 2000 and 1999,
filed with the Securities and Exchange Commission on April 16, 2001.
/s/ Weinberg & Company, P.A.
WEINBERG & COMPANY, P.A.
Certified Public Accountants
Boca Raton, Florida
October 16, 2001 |
