XcelMobility Inc.: Form S8 - Filed by newsfilecorp.com
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement under the Securities Act of 1933
Commission File Number: 000-54333
XCELMOBILITY, INC.
(Exact name of registrant as specified in its charter)
| Nevada |
98-0561888 |
| (State or Other Jurisdiction of |
(I.R.S. Employer |
| Incorporation) |
Identification No.)
|
| 303 Twin Dolphins Drive, Suite 600 |
| Redwood City, CA 94065 |
| (Address of Principal Executive Offices) |
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| (650) 632-4210 |
| (Registrant’s telephone number) |
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| XcelMobility, Inc. |
| 2014 Equity Incentive Plan |
| (Full Title of Plan) |
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| Renyan Ge |
| Chief Executive Officer Officer |
| 303 Twin Dolphins Drive, Suite 600 |
| Redwood City, CA 94065 |
| Telephone: (650) 632-4210 |
| (Name, Address, and Telephone Number, including Area
Code, of Agent for Service) |
| |
| With copies to: |
| Mark C. Lee |
| Greenberg Traurig, LLP |
| 1201 K Street, Suite 1100 |
| Sacramento, California 95814 |
| (916) 442-1111 |
Indicate by check mark whether the Registrant is a large
accelerated filer, an accelerated filer, a non–accelerated filer or a smaller
reporting company. See definitions of “large accelerated filer,” “accelerated
filer” and “smaller reporting company” in Rule 12b–2 of the Exchange Act. (Check
one):
| Large accelerated filer [ ] |
Accelerated filer [ ] |
Non–Accelerated filer [ ] |
Smaller Reporting Company [ x ]
|
Indicate by check mark whether the registrant is a shell
company (as defined in Rule 12b–2 of the Exchange Act). Yes[ ] No[ x ]
CALCULATIONOFREGISTRATIONFEE
| |
|
Proposed Maximum |
Proposed Maximum |
|
| Title of Securities |
Amount |
Offering Price Per |
Aggregate Price Offering |
Amount of |
| to be
Registered |
to be Registered(1) |
Share (2) |
|
Registration Fee |
| Common Stock ($0.001 par value) |
40,000,000 shares |
$0.06 |
$2,400,000 |
$309.12 |
| (1) |
Consists of 40,000,000 shares of common stock issuable
pursuant to the XcelMobility, Inc. 2014 Equity Incentive Plan |
| |
|
| (2) |
Estimated solely for the purpose of calculating the
registration fee. Calculated pursuant to Rules 457(c) and 457(h) under the
Securities Act, based upon the average of the high and low sales bid price
of the common stock of the Company as reported on the OTCQB on June 18,
2014. |
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
The information called for in Part I of this Form S-8
Registration Statement (“Form S-8”) is not being filed with or included in this
Form S-8 (by incorporation by reference or otherwise) in accordance with the
rules and regulations of the United States Securities and Exchange Commission
(“the SEC”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by XcelMobility,
Inc. (the “Company” or the “Registrant”) with the Securities and Exchange
Commission (the “Commission”), are hereby incorporated by reference:
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a) |
The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2013 filed on March 31, 2014; |
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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
Registrant’s Form 10-K referred to in (a) above; and |
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c) |
The description of the Registrant’s common stock
contained in the Registrant’s Registration Statement on Form 8-A (No.
333-158127) filed on April 5, 2011. |
All documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the
date of this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, in a
supplement to this Registration Statement or 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 herein or
in any subsequently filed supplement to this Registration Statement or in any
document that is subsequently 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 4. Description of Securities.
The authorized capital stock of the Company consists of
400,000,000 shares of common stock, par value $0.001 and 20,000,000 shares of
preferred stock, par value $0.001. As of June 12, 2014, 74,209,834 shares of
common stock are issued and outstanding and no shares of preferred stock are
outstanding.
Common Stock
The holders of our common stock are entitled to one vote per
share. They are not entitled to cumulative voting rights or preemptive rights.
The holders of Common Stock are entitled to receive ratably such dividends, if
any, as may be declared by the Board of Directors out of legally available
funds. However, the current policy of the Board of Directors is to retain
earnings, if any, for operations and growth. Upon liquidation, dissolution or
winding-up, the holders of Common Stock are entitled to share ratably in all
assets that are legally available for distribution after payment in full of any
preferential amounts. The holders of Common Stock have no subscription,
redemption or conversion rights. The rights, preferences and privileges of
holders of Common Stock are subject to, and may be adversely affected by, the
rights of the holders of any series of preferred stock, which may be designated
solely by action of the Board of Directors and issued in the future. All
outstanding shares of common stock are duly authorized, validly issued, fully
paid and non-assessable.
Preferred Stock
In accordance with our Articles of Incorporation, the Board of
Directors may fix and determine the designations, rights, preferences or other
variations of each class or series within each class of preferred stock. To
date, we have not issued any shares of preferred stock or designated any class
of preferred stock. No shares of preferred stock are outstanding.
Dividend Rights
We have never declared or paid any cash dividends on our common
stock. We currently intend to retain future earnings, if any, to finance the
expansion of our business. As a result, we do not anticipate paying any cash
dividends in the foreseeable future.
The holders of our common stock are entitled to receive
dividends pro rata based on the number of shares held, when and if declared by
our board of directors, from funds legally available for that purpose. Section
78.288 of Chapter 78 of the NRS prohibits us from declaring dividends where,
after giving effect to the distribution of the dividend:
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(a) |
we would not be able to pay our debts as they become due
in the usual course of business; or |
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(b) |
except as may be allowed by our Articles of
Incorporation, our total assets would be less than the sum of our total
liabilities plus the amount that would be needed, if we were to be
dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of stockholders who may have preferential rights
and whose preferential rights are superior to those receiving the
distribution. |
Our Articles of Incorporation and Bylaws do not contain
provisions restricting our ability to pay dividends of our common stock.
Item 5. Interests of Named Experts and Counsel.
No expert or counsel named in this prospectus as having
prepared or certified any part of this prospectus or having given an opinion
upon the validity of the securities being registered or upon other legal matters
in connection with the registration or offering of the common stock was employed
on a contingency basis, or had, or is to receive, in connection with the
offering, a substantial interest, direct or indirect, in the registrant or any
of its parents or subsidiaries. Nor was any such person connected with the
registrant or any of its parents or subsidiaries as a promoter, managing or
principal underwriter, voting trustee, director, officer, or employee.
The annual financial statements for the year ended December 31,
2013 included in the registration statement have been audited by Albert Wong
& Co. and are included in reliance upon such report given upon the authority
of said firm as experts in auditing and accounting.
The validity of the issuance of the common stock hereby will be
passed upon for us by Greenberg Traurig, LLP.
Item 6. Indemnification of Directors and Officers.
Nevada Law
Section 78.7502 of the Nevada Revised Statutes (“NRS”) permits
a corporation to 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 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 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:
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(a) |
is not liable pursuant to Nevada Revised Statute 78.138,
or |
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(b) |
acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. |
In addition, Section 78.7502 permits a corporation to 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 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 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:
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(a) |
is not liable pursuant to Nevada Revised Statute 78.138;
or |
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(b) |
acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation. |
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 above, or in defense of any claim, issue
or matter, the corporation is required to indemnify him against expenses,
including attorneys’ fees, actually and reasonably incurred by him in connection
with the defense.
Section 78.752 of the Nevada Revised Statutes allows a
corporation to purchase and maintain insurance or make other financial
arrangements 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, trust or other enterprise for any liability asserted
against him and 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.
Other financial arrangements made by the corporation pursuant
to Section 78.752 may include the following:
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(a) |
the creation of a trust fund; |
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(b) |
the establishment of a program of
self-insurance; |
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(c) |
the securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the
corporation; and |
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(d) |
the establishment of a letter of credit, guaranty or
surety |
No financial arrangement made pursuant to Section 78.752 may
provide protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals, 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.
Any discretionary indemnification pursuant to Section 78.7502,
unless ordered by a court or advanced pursuant to an undertaking to repay the
amount if it is determined by a court that the indemnified party is not entitled
to be indemnified by the corporation, 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:
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(b) |
by the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit or
proceeding; |
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(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 |
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(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. |
Charter Provisions and Other Arrangements of the
Registrant
Bylaws
The Registrant shall indemnify, to the maximum extent permitted
by the law, 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 Registrant, by reason of the fact that such person is or was a
director, officer, employee, or agent of the Registrant, or is or was serving at
the request of the Registrant as 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 such person in connection with
such action, suit, or proceeding if such person acted in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of no lo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Registrant, and that, with respect to any
criminal action or proceeding, such person had reasonable cause to believe that
his conduct was unlawful.
The Registrant shall indemnify, to the maximum extent permitted
by the law, 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
Registrant to procure a judgment in its favor by reason of the fact that such
person is or was a director, officer, employee, or agent of the Registrant, or
is or was serving at the request of the Registrant as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise against expenses, including attorneys’ fees, actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best interests of
the Registrant, but no indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of such person’s duty to the
Registrant unless and only to the extent that the court in which such action or
suit was brought determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
To the extent that a director, officer, employee or agent of
the Registrant has been successful on the merits or otherwise in defense of any
action, suit or proceeding in accordance with the Bylaws, or in defense of any
claim, issue or matter therein, such person shall be indemnified by the
Registrant against expenses, including attorneys’ fees, actually and reasonably
incurred by such person in connection with such defense.
Any indemnification in accordance with the Bylaws, unless
ordered by a court, shall be made by the Registrant only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in the Bylaws. Such
determination shall be made:
(i) by the shareholders;
(ii) by the Board of Directors by majority vote of a quorum
consisting of Directors who were not parties to such act, suit or
proceeding;
(iii) if such a quorum of disinterested Directors so orders, by
independent legal counsel in a written opinion; or
(iv) if such a quorum of disinterested Directors cannot be
obtained, by independent legal counsel in a written opinion.
Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Registrant in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors
unless it is ultimately determined that such director, officer, employee or agent is not entitled to be
indemnified by the Registrant as authorized in this section or as provided by
law.
The indemnification provided by the Bylaws:
(i) does not exclude any other rights to which a person seeking
indemnification may be entitled under any bylaw, agreement, vote of
shareholders, or disinterested Directors or otherwise, both as to action in such
person’s official capacity and as to action in another capacity while holding
such office; and
(ii) shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
The Registrant may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against any liability asserted against such person
and incurred by such person in any such capacity, or arising out of such
person’s status as such, whether or not the Registrant would have the power to
indemnify such person against such liability under the provisions of this
section.
In addition to the above, each of our directors has entered
into an indemnification agreement with us. The indemnification agreement
provides that we shall indemnify the director against expenses and liabilities
in connection with any proceeding associated with the director being our
director to the fullest extent permitted by applicable law, our Articles of
Incorporation and Bylaws.
Item 8. Exhibits.
Item 8. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) 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 the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(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) 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 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 this registration statement 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.
(c) 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 than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 Redwood, California, on this 20th day of June, 2014.
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XCELMOBILITY, INC. |
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By: /s/ Renyan Ge
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Renyan Ge |
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Chief Executive Officer |
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(Principal Executive Officer) |
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By: /s/ Xili Wang |
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Xili Wang |
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Chief Financial Officer |
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(Principal Financial Officer and Principal
Accounting Officer) |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Renyan Ge as his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her 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 or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or any of them, or
his/her substitute or substitutes, 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 dates indicated:
Dated: June 20, 2014
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/s/ Ronald E. Strauss |
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Ronald E. Strauss |
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Executive Chairman of the Board of Directors
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Dated: June 20, 2014
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/s/ Renyan Ge |
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Renyan Ge |
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Chief Executive Officer and Director
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