As filed with the Securities and Exchange Commission on May 12, 2006
REGISTRATION NO. 333-132066
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3 TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIRICOMM, INC.
---------------------------------------------
(Name of small business issuer in its charter)
Delaware 7372 62-1386759
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(State or Jurisdiction of Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification No.)
4710 East 32nd Street
Joplin, Missouri 64804
(417) 626-9961
(Address and Telephone Number of Principal Executive Office
and Principal Place of Business)
Henry P. Hoffman
President and Chief Executive Officer
4710 East 32nd Street
Joplin, Missouri 64804
(417) 626-9961
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(Name, address and telephone number of agent for service)
Copies to:
Joel C. Schneider, Esq.
Sommer & Schneider LLP
595 Stewart Avenue, Suite 710
Garden City, NY 11530
(516) 228-8181
(516) 228-8211 (fax)
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: From time to time
after this Registration Statement becomes effective.
If any of the securities being registered on the Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act, check
the following box. [X]
If the Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, as amended (the "Securities
Act"), check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. [ ]
If the Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434 of the
Securities Act, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities to Amount to be Offering Price Per Aggregate Offering Registration Fee
be Registered Registered (1) Security (2) Price
-------------------------------------- --------------------- ---------------------- ---------------------- ------------------
Shares of Common Stock, $0.001 par 4,757,263 $2.00 $9,514,526 $1,119.86
value per share
-------------------------------------- --------------------- ---------------------- ---------------------- ------------------
Shares of Common Stock, $0.001 par 5,396,876 $2.00 $10,793,752 $1,270.42
value per share (3)
-------------------------------------- --------------------- ---------------------- ---------------------- ------------------
Total 10,154,139 $2.00 $20,308,278 $2,390.28
-------------------------------------- --------------------- ---------------------- ---------------------- ------------------
(1) All 10,154,139 shares registered pursuant to this registration statement are
to be offered by the selling shareholders. Pursuant to Rule 416 under the
Securities Act, this registration statement also covers such number of
additional shares of common stock to prevent dilution resulting from stock
splits, stock dividends and similar transactions pursuant to the terms of
the warrants referenced below.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) and Rule 457(g) under the Securities Act, using
the average of the bid and asked price as reported on the Over the Counter
Bulletin Board on February 14, 2006.
(3) Represents a total of 5,396,876 shares of common stock issuable upon the
exercise of warrants held by the selling shareholders.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD UNTIL THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO
SELL AND IS NOT A SOLICITATION OF AN OFFER TO BUY IN ANY STATE IN WHICH AN
OFFER, SOLICITATION, OR SALE IS NOT PERMITTED.
Subject to completion, dated May 12, 2006
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
The Delaware General Corporation Law and our Bylaws provide for indemnification
of the Registrant's officers and directors for liabilities and expenses that
they may incur in such capacities. In general, the Registrant's directors and
officers are indemnified with respect to actions taken in good faith and in a
manner such person believed to be in our best interests, and with respect to any
criminal action or proceedings, actions that such person has no reasonable cause
to believe were unlawful. Furthermore, the personal liability of the
Registrant's directors is limited as provided in the Registrant's Certificate of
Incorporation.
The Registrant maintains directors and officers liability insurance with an
aggregate coverage limit of $3,000,000.
Insofar as indemnification for liabilities arising under the Securities Act, as
amended, 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 (the "SEC"), such indemnification is
against public policy as expressed in the Act and is therefore unenforceable.
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses of the Registrant in connection with the issuance and distribution of
the securities being registered, other than the underwriting discount, are
estimated as follows:
SEC Registration Fee........................ $ 2,390.28
Printing and Engraving Expenses............. $ 2,500.00
Legal Fees and Expenses..................... $ 30,000.00
Accountants' Fees and Expenses.............. $ 7,500.00
Miscellaneous Costs......................... $ 2,500.00
Total....................................... $ 44,890.28
All of these expenses, except for the SEC registration and filing fees,
represent estimates only. We will pay all of the expenses of this offering.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
On November 21, 2002, the Registrant completed the acquisition of all of the
issued and outstanding shares of SiriCOMM, Inc. (Missouri). An aggregate of
9,712,867 shares were issued to SiriCOMM's 18 shareholders, including 5,762,303
issued to Henry P. Hoffman, the Registrant's President, CEO and Chairman,
1,098,331 issued to David N. Mendez, the Registrant's Executive V.P. - Sales and
Marketing and a Director and 1,023,535 issued to Kory S. Dillman, the
Registrant's Executive V.P. - Internet Business Development and a Director. The
shares were issued under the exemption from registration provided in Section
4(2) of the Act.
On January 7, 2003, the Registrant issued 29,525 shares of its common stock to
David and Rebecca Seidl and issued 19,683 shares of its common stock to John
Cesta and Patti Ann's Dreams, Inc. in connection with loans made to the
Registrant in the aggregate amount of $125,000. The shares were issued under the
exemption from registration provided in Section 4(2) of the Act.
On January 7, 2003, the Registrant issued 868,000 shares of its common stock to
Jeff Wasson and 1,054,000 shares of its common stock to Quest Capital Alliance,
L.L.C., pursuant to the conversion of convertible debt in the aggregate of
$1,000,000. The shares were issued under the exemption from registration
provided in Section 4(2) of the Act.
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On February 12, 2003, the Registrant issued 9,842 shares of its common stock to
Carlye Wannenmacher in connection with a loan made to the Registrant in the
amount of $25,000. The shares were issued under the exemption from registration
provided in Section 4(2) of the Act.
On April 14, 2003, the Registrant issued 107,000 shares of its common stock to
Finter Bank Zurich pursuant to the conversion of convertible debt in the
principal amount of $100,000 plus $7,000 of accrued interest. The shares were
issued under the exemption from registration provided in Section 4(2) of the
Act.
On July 23, 2003, the Registrant issued an aggregate of 39,366 shares of its
common stock to four individuals including 9,842 shares to Terry W. Thompson,
who later became a Director of the Registrant in August 2003, in connection with
loans made to the Registrant in the aggregate amount of $100,000. The shares
were issued under the exemption from registration provided in Section 4(2) of
the Act.
On August 18, 2003, the Registrant issued 55,944 shares of its common stock to
The Research Works, Inc. pursuant to a letter agreement. The shares were issued
under the exemption from registration provided in Section 4(2) of the Act.
On December 5, 2003, the Registrant issued 34,000 shares of its common stock to
MCC Securities, Inc. pursuant to an agreement. The shares were issued under the
exemption from registration provided in Section 4(2) of the Act.
On December 10, 2003, the Registrant issued an aggregate of 213,417 shares of
its Series A Preferred Stock to Quest Capital Alliance L.L.C. (161,165) and
William and Joy Fotsch (52,252) pursuant to the conversion of an aggregate of
$200,000 of principal plus $13,417 of interest due by the Registrant. The shares
were issued under the exemption from registration provided in Section 4(2) of
the Act.
In November 2003, Robert J. Smith converted $154,443 of debt due to him by the
Registrant into a like number of the Units comprised of shares and 3 year
warrants exercisable at $2.00 per share.
On March 10, 2004 the Registrant closed the sale of 2,000,000 units ("Units") at
$1.00 per unit to twenty-seven accredited investors. Each unit consists of one
share of the Registrant's common stock and one three-year warrant exercisable at
$2.00 per share. Among the investors in this offering was Mr. Terry W. Thompson,
a director of the Registrant who purchased 100,000 Units. The units were issued
under the exemption from registration provided in Section 4(2) of the Act.
In February 2004, the Registrant issued an aggregate of 200,000 warrants to
Clark Burns (100,000) and Philip Snowden (100,000). The warrants are exercisable
for three (3) years at an exercise price of $.50 per share. The warrants were
issued under the exemption from registration provided in Section 4(2) of the
Act.
On March 10, 2004 the Registrant issued 331,951 Units to five investors upon the
conversion of an aggregate of $331,951 of debt due by the Registrant to these
investors. Among the investors converting their debt was Mr. Terry W. Thompson,
direct of the Registrant who converted $50,600 of debt into 50,600 Units. These
Units were issued under the exemption from registration provided in Section 4(2)
of the Act.
On March 18, 2004 the Registrant issued 27,656 units comprised of 27,656 shares
and 27,656 three year warrants exercisable at $2.00 per share to Marvin and
Donna McDaniel upon the conversion of $27,656 of debt due by the Registrant to
the McDaniels. The units were issued under the exemption from registration
provided in Section 4(2) of the Act.
On April 7, 2004, the Registrant issued 436,000 shares of its common stock to
Gunner Investments, Inc. pursuant to a consulting agreement. The shares were
issued under the exemption from registration provided in Section 4(2) of the
Act.
On April 7, 2004 the Registrant issued to the principals of Layne Morgan
Technology Group an aggregate of 100,000 shares of its common stock and 150,000
three-year common stock purchase warrants exercisable at $1.50 per share
pursuant to a consulting agreement. The shares and warrants were issued under
the exemption from registration provided in Section 4(2) of the Act.
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On May 4, 2004 the Registrant closed the sale of 328,143 units at $3.40 per unit
to fourteen accredited investors. Each unit consists of one share of the
Registrant's common stock and one quarter (1/4) of a three-year warrant
exercisable at $4.75 per share. The units were issued under the exemption from
registration provided in Section 4(2) of the Act.
On September 23, 2004, the Registrant issued 26,375 units comprised of 26,375
shares and 26,375 three year warrants exercisable at $2.00 per share to William
and Susann Perkin upon the conversion of $26,375 of debt due by the Registrant
to the Perkins. The units were issued under the exemption from registration
provided in Section 4(2) of the Act
As of December 31, 2004, the Registrant consummated the private placement of its
units pursuant to a Confidential Investment Proposal dated October 11, 2004 and
amended on December 20, 2004. Each unit consisted of 50,000 shares of the common
stock and a common stock warrant to purchase 37,500 shares of common stock . In
the private placement, the Registrant sold an aggregate of 6.38 Units (319,000
shares of common stock and warrants to purchase 239,250 shares of common stock)
for an aggregate purchase price of $638,000, or $100,000 per unit. The warrants
entitle the holders to purchase shares of the common stock for a period of five
years from the date of issuance at an exercise price of $2.40 per share. The
warrants contain certain anti-dilution rights and are redeemable by the
Registrant, on terms specified in the warrants.
In connection with the December 2004 private placement, Laidlaw Co. (UK) Ltd.
(f/k/a Sands Brothers International Limited) the placement agent, received a
cash commission fee of nine (9%) of the gross proceeds to the Registrant of the
securities sold at the closing, a payment of $30,000 representing the fees and
expenses of its counsel in the Private Placement and warrants to purchase 31,900
shares of common stock, or ten percent (10%) of the shares of common stock sold
in the private placement. These warrants are exercisable for a period of five
years at an exercise price of $2.40 per share and contain the same anti-dilution
rights as the warrants issued in the private placement.
In connection with the December 2004 private placement, the Registrant also
agreed to file with the SEC a registration statement covering the shares of
common stock issued in the private placement and the shares of common stock
issued underlying the warrants issued in the private placement, including the
warrant issued to the placement agent. The Company complied with the
registration rights agreement that required the Company to file a registration
statement and such statement becoming effective within 120 days. This relieved
the Registrant of the penalty to pay to the investors 1% of the gross proceeds
of the private placement for each thirty (30) day period in which the Registrant
fails to comply with such requirements.
On January 5, 2005 the Registrant issued an aggregate of 85,000 shares of its
common stock upon the exercise of a like number of warrants, exercisable at
$2.00 per share. The warrants were originally issued in January 2004 pursuant to
a private placement of the Registrant's units consisting of common stock and
warrants. As an inducement to the investors exercising their warrants, the
Registrant issued warrants for an aggregate of 63,750 new warrants to the
investors. The new warrants entitle the holders to purchase shares of the
Registrant's common stock reserved for issuance thereunder for a period of five
years from the date of issuance at an exercise price of $2.40 per share. The
warrants contain anti-dilution rights and are redeemable by the Registrant, in
whole or in part, on terms specified in the warrants.
As a further inducement to the investors exercising their warrants, the
Registrant also agreed to file with the SEC a registration statement covering
the shares purchased by each investor as part of the units, the shares issued
upon exercise of the warrants and the shares underlying the new warrants. The
cash proceeds of the above sales of securities of the Registrant were used for
general corporate purposes in developing the Registrant's planned services.
On February 7, 2005, the Registrant entered into a network installation
agreement with Sat-Net Communications, Inc., pursuant to which Sat-Net agreed to
provide the Registrant certain services in exchange for 2,000,000 shares of
common stock, warrants to purchase 1,000,000 shares of common stock at an
exercise price of $2.00 per share, and cash consideration. The Registrant has
agreed to register the 2,000,000 shares held by Sat-Net pursuant to the terms of
the network installation agreement.
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On April 11, 2005, the Registrant consummated a private placement of 1,066,667
units to Sunflower Capital, LLC at an aggregate purchase price of $1,600,000, or
$1.50 per unit. The units consisted of 1,066,667 shares of common stock and
warrants to purchase 1,066,667 shares of common stock. The warrants entitle the
holder to purchase shares of common stock for a period of five years from the
date of issuance at an exercise price of $2.50 per share. In a separate
transaction also consummated on April 11, 2005, the Registrant sold warrants to
purchase 413,605 shares of common stock to Sunflower Capital, LLC at a purchase
price of $53,333, or approximately $0.13 per warrant. These warrants entitle the
holder to purchase shares of common stock for a period of five years from the
date of issuance at an exercise price of $3.00 per share. These securities were
issued under the exemption from registration provided in Section 4(2) of the
Act.
In June 2005, the Company consummated the private sale of its securities to ten
(10) investors, including Sunflower Capital, LLC a limited liability company
managed by William P. Moore, a director of the Company. The securities sold
units comprised of shares of the Company's common stock and warrants to purchase
shares of the Company's common stock. At the closing, the Company sold an
aggregate of 267,833 units at an aggregate purchase price of approximately
$401,750 or $1.50 per unit. At the closing, the Company delivered an aggregate
of 267,833 shares and delivered warrants to purchase an additional 267,833
shares of the Company's common stock. The warrants entitle the holder to
purchase shares of the Company's common stock reserved for issuance thereunder
for a period of five years from the date of issuance at an exercise price of
$2.50 per share. The warrants contain certain anti-dilution rights and are
redeemable by the Company, in whole or in part, on terms specified in the
warrants.
In a separate transaction the Company sold 25,850 warrants to Sunflower Capital,
LLC at a purchase price of $3,333.50 or approximately $.13 per warrant. These
warrants entitle the holder to purchase shares of the Company's common stock
reserved for issuance thereunder for a period of five (5) years from the date of
issuance at an exercise price of $3.00 per share. These warrants contain certain
anti-dilution rights and are redeemable by the Company, in whole or in part, on
terms specified in these warrants.
On July 8, 2005, the Company issued 15,000 shares of its common stock and 20,000
common stock purchase warrants to Interactive Resource Group ("IRG") pursuant to
a consulting agreement. The warrants are exercisable for four (4) years and have
varying exercise prices as set forth below:
o 10,000 at $2.50;
o 5,000 at $3.00; and
o 5,000 at $4.00.
The shares and warrants were issued under the exemption from registration
provided in Section 4(2) of the Act.
On September 22, 2005, the Company issued 4,000 shares (valued at $6,000) of its
common stock to Satellite Dish Communications ("SDC") in exchange for SDC's
installation and removal of WLAN equipment purchased from Truckstop.net and
located at various truck stops nationwide. The shares were issued under the
exemption from registration provided in Section 4(2) of the Act.
On September 22, 2005, the Company issued an aggregate of 200,000 warrants to
Clark Burns (100,000) and Philip Snowden (100,000). The warrants are exercisable
for five (5) years at an exercise price of $1.50 per share. The warrants were
issued under the exemption form registration provided in Section 4(2) of the
Act.
On December 15, 2005, the Company issued 25,000 shares of its common stock to
IRG pursuant to a consulting agreement dated November 30, 2005. The consulting
agreement also requires the Company to issue an additional 15,000 shares on or
before January 1, 2006 and 10,000 shares on or before February 1, 2006.
Additionally, the consulting agreement calls for the issuance on January 15,
2006 of 50,000 four (4) year warrants with the following exercise prices:
16,666 at $1.25
16,667 at $1.35
16,667 at $1.45
On December 27, 2005, the Company entered into a Loan Agreement with Sunflower
Capital, LLC. The loan is in the principal amount of $500,000 and is evidenced
by a Convertible Promissory Note due July 1, 2006. As consideration for
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Sunflower making the loan, the Company issued to Sunflower a warrant to purchase
200,000 shares of the Company's common stock at $1.26 per share. The warrant
expires December 15, 2010.
As discussed below, the principal due under the Note plus accrued interest of
$4,602 was converted into 438,785 units of the Company's securities.
The aforementioned securities have been and will be issued under the exemption
from registration provided in Section 4(2) of the Act.
The cash proceeds of the above sales of securities of the Company were used for
general corporate purposes in developing the Company's planned services.
On January 31, 2006, the Company consummated the private placement of its
securities pursuant to a Placement Agent Agreement entered into between it and
Sanders Morris Harris, Inc. as Placement Agent dated December 12, 2005. The
securities sold were units consisting of one share of the Company's common
stock, $.001 par value and one redeemable Common Stock purchase warrant. At the
closing, the Company sold an aggregate of 4,692,263 units at an aggregate
purchase price of $5,396,103 or $1.15 per unit. At the closing the Company
delivered an aggregate of 4,692,263 shares and 4,692,263 warrants to the
purchasers.
Each warrant entitles the holder to purchase one share of common stock at an
exercise price of $1.50 per share commencing on the date of issuance and
expiring at the close of business on the fifth anniversary of the issuance date.
The warrants contain provisions that protect the holder against dilution by
adjustment of the exercise price in certain events including, but not limited
to, stock dividends, stock splits, reclassifications, or mergers. The Company
may redeem the warrants, at a price of $.10 per warrant, at any time following
the issuance date upon not less than 30 days nor more than 60 days prior written
notice if (a) the Common Stock underlying the warrants has been registered with
the SEC, and (b) the closing price of the Common Stock exceeds a 200% premium of
the exercise price of the warrants for 20 out of 30 consecutive trading days.
In connection with the private placement, Sanders Morris Harris, Inc., the
placement agent in the private placement, received a commission equal to 5% of
the offering price of the units sold by them in the private placement, a
commission equal to 2 1/2% on the 1,764,872 units by Sunflower Capital and a
financial advisory fee equal to 2% of the offering price of the units sold in
the private placement and a warrant to purchase 234,613 shares of common stock,
or 5% of the units sold in the private placement. The warrants are exercisable
for a period of five years at an exercise price of $1.15 per share and contain
the same anti-dilution rights as the common stock warrant issued in the January
2006 private placement.
As part of the Private Placement, the Registrant entered into a registration
rights agreement with each subscriber who purchased units in the Private
Placement. Under the Registration Rights Agreement, the Registrant, as promptly
as reasonably practicable after closing of the Private Placement but in no event
later than 30 days following the closing, the Registrant is obligated to file a
registration statement on Form SB-2, relating to the resale by the holders of
the Common Stock underlying the units, warrants and Placement Agent Warrant. If
such Registration Statement is not filed within the required time frame, or does
not become effective within 90 days after closing (or 120 days after closing, if
the Registration Statement is subject to review by the SEC), the Registrant has
agreed to pay to the investors 1% of the gross proceeds of the offering for each
month in which the Registrant fails to comply with such requirements.
Sunflower Capital, LLC, a limited liability company managed by William P. Moore,
a director of the Registrant, purchased an aggregate of 1,764,872 units in the
offering, which consisted of a new investment of $1,525,000.05 to purchase
1,326,087 units and the conversion of a $500,000 Convertible Promissory Note
plus accrued interest in the amount of $4,602 to purchase 438,785 units.
The securities discussed above were offered and sold in reliance upon exemptions
from the registration requirements of Section 5 of the Securities Act of 1933,
as amended (the "Act"), pursuant to Section 4(2) of the Act and Rule 506
promulgated thereunder. Such securities were sold exclusively to accredited
investors as defined by Rule 501(a) under the Act.
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ITEM 27. EXHIBITS.
The following exhibits are included as part of this Form SB-2.
Exhibit No. Description
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3.1 Certificate of Incorporation of the Registrant, filed March
23, 1989 (Incorporated by reference to Exhibit 3.1 of the
Registration Statement on Form S-1 filed on January 4, 1990,
Registration Number 33-32824 (the "Form S-1"))
3.2 Certificate of Amendment of Certificate of Incorporation,
filed April 10, 1989 (Incorporated by reference to Exhibit 3.2
of the Form S-1)
3.3 Restated Certificate of Incorporation of the Registrant, filed
November 13, 1989 (Incorporated by reference to Exhibit 3.3 of
the Form S-1)
3.4 By-Laws of the Registrant (Incorporated by reference to
Exhibit 3.4 of the Form S-1)
3.5 Certificate of Designation, Preference and Rights of Series A
Preferred Stock (Incorporated by reference to Exhibit 3.5 of
the Company's Current Report on Form 8-K filed on July 31,
1997 (July 1997 Form 8-K))
3.6 Amended and Restated Certificate of Incorporation of Fountain
Pharmaceuticals, Inc. dated November 21, 2002, as filed in the
office of the Secretary of State, State of Delaware on
November 21, 2002. (Incorporated by reference to Exhibit 99.1
to the November 21, 2002 Form 8-K)
4.1 Copy of Specimen Stock Certificate (Incorporated by reference
to Exhibit 4.1 of the Form S-1)
4.2 Copy of Specimen Stock Certificate of Series A Preferred Stock
(Incorporated by reference to Exhibit 4.3 to the July 1997
Form 8-K)
4.3 Form of Warrant issued to the principals of Layne Morgan
(Incorporated by reference to Exhibit 4.1 to the Registrant's
Form 10-QSB for the quarter ended March 31, 2004.)
4.4 Form of Warrant issued to investors on May 4, 2004
(Incorporated by reference to Exhibit 4.2 to the Registrant's
Form 10-QSB for the quarter ended March 31, 2004.)
5.1 Opinion of Sommer & Schneider LLP**
10.1 Capital Stock Purchase Agreement between Fountain Holdings
LLC, Joseph S. Schuchert, Jr. and Park Street Acquisition
Corporation dated December 31, 2001. (Incorporated by
reference to Exhibit 1.1 to the Registrant's Form 8-K Report
dated December 31, 2001)
10.2 Capital Stock Purchase Agreement between Fountain
Pharmaceuticals, Inc. and Park Street Acquisition Corp. dated
December 31, 2001. (Incorporated by reference to Exhibit 1.2
to the Registrant's Form 8-K Report dated December 31, 2001)
10.3 Securities Exchange Agreement dated as of April 5, 2002
between the Company and the holders of the common stock of
SiriCOMM, Inc. (Missouri) (Incorporated by reference to
Exhibit 2.1 to the
November 21, 2002 Form 8-K)
10.4 Amendment to Securities Exchange Agreement dated as of June 5,
2002 between the Company and the shareholders of SiriCOMM,
Inc. (Missouri) (Incorporated by reference to Exhibit 2.2 to
the November 21, 2002 Form 8-K)
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10.5 Amendment No. 2 to Securities Exchange Agreement dated as of
November 21, 2002 between the Company and the shareholders of
SiriCOMM, Inc. (Missouri) (Incorporated by reference to
Exhibit 2.3 to the November 21, 2002 Form 8-K)
10.6 Consulting Agreement dated July 2, 2003 between the Company
and CLX & Associates (Incorporated by reference to Exhibit
10.1 to the Registrant's Form 10-QSB for the quarter ended
June 30, 2003)
10.7 Consulting Agreement dated June 2, 2003 between the Company
and The Research Works, Inc. (Incorporated by reference to
Exhibit 10.2 to the Registrant's Form 10-QSB for the quarter
ended June 30, 2003)
10.8 Consulting Agreement and addendums dated May 30, 2003 between
the Company and Staunton McLane LLC. (Incorporated by
reference to Exhibit 10.3 to the Registrant's Form 10-QSB for
the quarter ended June 30, 2003)
10.9 Employment Agreement dated February 19, 2002 between the
Company and Henry P. Hoffman (Incorporated by reference to
Exhibit 10.10 to the Registrant's Form 10-KSB for the fiscal
year ended September 30, 2003)
10.10 Employment Agreement dated February 19, 2002 between the
Company and Kory S. Dillman (Incorporated by reference to
Exhibit 10.11 to the Registrant's Form 10-KSB for the fiscal
year ended September 30, 2003)
10.11 Employment Agreement dated February 19, 2002 between the
Company and David N. Mendez (Incorporated by reference to
Exhibit 10.12 to the Registrant's Form 10-KSB for the fiscal
year ended September 30, 2003)
10.12 Letter to Staunton McLane from the Company dated November
28,2003 terminating the service agreement. (Incorporated by
reference to Exhibit 10.13 to the Registrant's Form 10-KSB for
the fiscal year ended September 30, 2003)
10.13 Consulting Agreement dated April 22, 2004 between the Company
and Layne Morgan Technology Group (Incorporated by reference
to Exhibit 10.1 to the Registrant's Form 10-QSB for the
quarter ended March 31, 2004)
10.14 Consulting Agreement dated April 22, 2004 between the Company
and Gunner Investments, Inc. (Incorporated by reference to
Exhibit 10.2 to the Registrant's Form 10-QSB for the quarter
ended March 31, 2004)
10.15 Memorandum of Understanding between the Company and
Christenson Transportation, Inc. (Incorporated by reference to
Exhibit 10.3 to the Registrant's Form 10-QSB for the quarter
ended March 31, 2004)
10.16 Memorandum of Understanding between the Company and Mark
Sullivan (Incorporated by reference to Exhibit 10.4 to the
Registrant's Form 10-QSB for the quarter ended March 31, 2004)
10.17 Form of Subscription Agreement (Incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K dated December 31,
2004)
10.18 Form of Common Stock Purchase Warrant (Incorporated by
referenced to Exhibit 10.2 to the Registrant's Form 8-K dated
December 31, 2004)
10.19 Form of Common Stock Purchase Warrant (Incorporated by
reference to Exhibit 10.1 to the Registrant's Form 8-K dated
January 5, 2005)
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10.20 Form of Registration Rights Agreement (Incorporated by
reference to Exhibit 10.1 to the Registrant's Form 8-K dated
January 5, 2005)
10.21 Network Access Service Agreement, dated February 7, 2005
between the Company and Idling Solutions, L.L.C. Incorporated
by reference to Exhibit 10.8 to the Registrant's Form 10-QSB
for the quarter ended December 31, 2004)
10.22 Network Installation Agreement between the Company and Sat-Net
Communications, Inc. dated February 7, 2005 (Incorporated by
referenced to Exhibit 10.1 of Form 8-K dated February 7, 2005)
10.23 Form of Registration Rights Agreement (Incorporated by
referenced to Exhibit 10.2 of Form 8-K dated February 7, 2005)
10.24 Form of Warrant (Incorporated by referenced to Exhibit 10.3 of
Form 8-K dated February 7, 2005) 13.1 Consent of independent
auditors 14.1 Code of Business Conduct (Incorporated by
reference to Exhibit 14.1 to the Registrant's Form 10-KSB for
the fiscal year ended September 30, 2003)
10.25 Subscription Agreement, dated April 11, 2005, between the
Registrant and Sunflower Capital, LLC (incorporated by
reference to Exhibit 10.1 to the Registrant's Form 8-K filed
April 13, 2005).
10.26 Common Stock Purchase Warrant (incorporated by reference to
Exhibit 10.2 to the Registrant's Form 8-K filed April 13,
2005).
10.27 Common Stock Purchase Warrant (incorporated by reference to
Exhibit 10.3 to the Registrant's Form 8-K filed April 13,
2005).
10.28 Warrant Purchase Agreement dated April 11, 2005, between the
Registrant and Sunflower Capital, LLC (incorporated by
reference to Exhibit 10.4 to the Registrant's Form 8-K filed
April 13, 2005).
10.29 Form of Subscription Agreement (Incorporated by reference to
Exhibit 10.1 of Form 8-K dated July 7, 2005)
10.30 Form of Common Stock Purchase Warrant (Incorporated by
reference to Exhibit 10.2 of Form 8-K dated July 7, 2005)
10.31 Warrant Agreement dated July 7, 2005 between the Registrant
and Sunflower Capital, LLC (Incorporated by reference to
Exhibit 10.3 of Form 8-K dated July 7, 2005)
10.32 Common Stock Purchase Warrant (Incorporated by reference to
Exhibit 10.4 of Form 8-K dated July 7, 2005)
10.33 Loan Agreement dated December 27, 2005, between the Registrant
and Sunflower Capital, LLC (Incorporated by reference to
Exhibit 10.1 of Form 8-K dated December 27, 2005)
10.34 Convertible Promissory Note dated December 27, 2006 issued to
Sunflower Capital LLC (Incorporated by reference to Exhibit
10.2 of Form 8-K dated December 27, 2005)
10.35 Warrant issued to Sunflower Capital LLC dated December 27,
2005 (Incorporated by reference to Exhibit 10.1 of Form 8-K
dated December 27, 2005)
10.36 Consulting Agreement dated November 15, 2005 between the
Registrant and Interactive Resource Group, Inc. (Incorporated
by reference to Exhibit 10.25 to the Registrant's Form 10-KSB
for the year ended September 30, 2005)
10.37 Form of Subscription Agreement (Incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K dated January 31,
2006)
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10.38 Form of Common Stock Purchase Warrant (Incorporated by
reference to Exhibit 10.2 to the Registrant's Form 8-K dated
January 31, 2006)
10.39 Form of Registration rights Agreement (Incorporated by
reference to Exhibit 10.3 to the Registrant's Form 8-K dated
January 31, 2006)
10.40 Form of Placement Agent Warrant (Incorporated by reference to
Exhibit 10.4 to the Registrant's Form 8-K dated January 31,
2006)
10.41 Placement Agent Agreement between the Registrant and Sanders
Morris Harris, Inc. dated December 12, 2005 (Incorporated by
reference to Exhibit 10.5 to the Registrant's Form 8-K dated
January 31, 2006)
10.42 Service Agreement dated June 14, 2004, between the Registrant
and ViaSat, Inc.**
10.43 Loan Agreement dated February 8, 2006 between the Registrant
and Liberty Bank **
10.44 Service Agreement dated May 27, 2004 between the Registrant
and Pilot Travel Centers LLC**
10.45 Service Agreement dated October 4, 2005 between the Registrant
and Love's Travel Stops and Country Stores, Inc. **
10.46 Service Agreement dated December 20, 2005 between the
Registrant and Petro Stopping Centers, LP**
14.2 Code of Ethics for Financial Executives (Incorporated by
reference to Exhibit 14.2 to the Registrant's Form 10-KSB for
the fiscal year ended September 30, 2003)
14.3 Audit Committee Charter (Incorporated by reference to Exhibit
14.3 to the Registrant's Form 10-KSB for the fiscal year ended
September 30, 2004)
23.1 Consent of Sommer & Schneider LLP is contained in Exhibit 5.1
to this Registration Statement**
23.2 Consent of BKD, LLP**
24.1 Power of Attorney is contained on the Signature page of this
Registration Statement
* Filed with the initial filing of the Registration Statement on Form SB-2
** Filed herewith.
ITEM 28. 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;
(b) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this 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
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changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of the
Registration Fee" table in the effective registration statement.
(c) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraph (a) and
(b) above shall not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are
incorporated by reference in this 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.
(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 this
offering.
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 Securities Act
of 1933 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 Securities
Act of 1933 and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes 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 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.
For purposes of determining any liability under the Securities Act of 1933, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this Registration
Statement as of the time it was declared effective. For the purpose of
determining any liability under the Securities Act of 1933, each post-effective
that contains a form of prospectus 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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SIGNATURES
In accordance with 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 of filing on Form SB-2 and authorizes this registration
statement to be signed on its behalf by the undersigned, in the City of Joplin,
State of Missouri, on this 12th day of May, 2006.
SIRICOMM, INC.
By: /s/ Henry P. Hoffman
----------------------
Name: Henry P. Hoffman
Title: President and Chief
Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears
below hereby constitutes and appoints Henry P. Hoffman and J. Richard Iler as
his 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 registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto 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 connection
therewith, as fully to all intents and purposes as he might or could do them in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or any of them, or their or his substitute or substitutes, shall do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form SB-2 has been signed below by the following persons in the
capacities and on the dates indicated:
Name Title Date
/s/ Henry P. Hoffman President, Chief Executive Officer May 12, 2006
------------------------ and Chairman of the Board (principal
Henry P. Hoffman executive officer)
/s/ David M. Mendez Executive Vice President - Sales and May 12, 2006
------------------------ executive officer)
David M. Mendez
/s/ Kory S. Dillman Executive Vice President - Internet May 12, 2006
------------------------ Business Development and Director
Kory S. Dillman
/s/ J. Richard Iler Chief Financial Officer and Director May 12, 2006
------------------------ (principal financial and accounting
J. Richard Iler officer)
/s/ Terry W. Thompson Director May 12, 2006
------------------------
Terry W. Thompson
/s/ William P. Moore Director May 4, 2006
------------------------
William P. Moore
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