As filed with the Securities and Exchange Commission on January 3, 2006
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
I2 TELECOM INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
| WASHINGTON | 91-1426372 | |
(State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) |
1200 Abernathy Road
Suite 1800
Atlanta, Georgia 30328
(Address of Principal Executive Offices)
I2 TELECOM INTERNATIONAL, INC. 2004 STOCK INCENTIVE PLAN
(Full Title of the Plan)
Mr. Paul R. Arena
Chief Executive Officer
i2 Telecom International, Inc.
1200 Abernathy Rd.
Suite 1800
Atlanta, GA 30328
(770) 512-7174
(Names, Addresses of Agents for Service)
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered | Amount to be Registered(2) | Proposed Maximum Offering Price Per Share(3) | Proposed Maximum Aggregate Offering Price | Amount of Registration Fee | |||||||
Common Stock, no par value per share(1) | 10,000,000 | $ | 0.063 | $ | 630,000 | $ | 67.41 | ||||
| (1) | Represents shares issuable pursuant to the i2 Telecom International, Inc. 2004 Stock Incentive Plan, as amended (the “Plan”). |
| (2) | In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan as described herein. |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, based upon the average of the high and low prices of the registrant’s common stock on December 30, 2005, as reported on the Over-the-Counter Bulletin Board. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.Plan Information.
The documents containing the information specified in this Item 1 will be sent or given to employees, officers, directors or others as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the rules and regulations of the Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
Item 2.Registration Information and Employee Plan Annual Information.
The documents containing the information specified in this Item 2 will be sent or given to employees, officers, director or others as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Certain Documents by Reference.
The following documents previously filed with the Commission are incorporated by reference in this Registration Statement:
| (i) | The Registrant’s Annual Report on Form 10-KSB for the year ended December 31, 2004, as amended by Amendments No. 1, No. 2 and No. 3 thereto filed on June 17, 2005, July 13, 2005 and October 13, 2005, respectively; |
| (ii) | The Registrant’s Quarterly Reports on Form 10-QSB for the quarter ended March 31, 2005, as amended by Amendment No. 1 thereto filed on June 17, 2005; for the quarter ended June 30, 2005, as amended by Amendment No. 1 thereto filed on October 13, 2005 and for the quarter ended September 30, 2005 filed on November 21, 2005; |
| (iii) | The Registrant’s Current Reports on Form 8-K filed on March 2, 2005, April 6, 2005, April 11, 2005, April 12, 2005, April 25, 2005, May 6, 2005, May 20, 2005, June 6, 2005, June 17, 2005, July 5, 2005, July 12, 2005, September 6, 2005, September 8, 2005, September 13, 2005, September 14, 2005, November 22, 2005 and December 7, 2005; and |
| (iv) | The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A (File No. 0-27704) filed with the Commission on February 6, 1996. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment to this Registration Statement which indicates that all the shares of the Registrant’s common stock offered hereby have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be 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 modifies or supersedes such statement. Any such 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.
Not applicable.
Item 5.Interests of Named Experts and Counsel.
The validity of the shares of the Registrant’s common stock registered herby has been passed upon by Richardson & Patel, LLP.
Item 6.Indemnification of Officers and Directors.
Section RCW 23B.08.510 of the Washington Business Corporation Act permits the indemnification of directors and officers of Washington corporations. The Registrant’s amended and restated articles of incorporation and bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extend permitted by Washington law.
Under Washington law, the Registrant has the power to indemnify its directors and officers against claims arising in connection with their service to the Registrant except when a director’s or officer’s conduct
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involves: (i) a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (ii) any other proceeding charging improper personal benefit to the director, whether or not involving action in the director’s official capacity, in which the director was adjudged liable on the basis that personal benefit was improperly received by the director.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers or persons in control pursuant to the foregoing provisions, the Registrant has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Section RCW 23B.08.540 of the Washington Business Corporation Act states that the court may order indemnification or advance of expenses if it determines that: (i) the director is entitled to mandatory indemnification under RCW23B.08.520, in which case the court shall also order the corporation to pay the director’s reasonable expenses incurred to obtain court-ordered indemnification; (ii) the director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the director met the standard of conduct set forth in RCWB.08.510 or was adjudged liable as described in RCW.23B.08.510(4), but if the director was adjudged so liable the director’s indemnification is limited to reasonable expenses incurred unless the articles of incorporation or a bylaw, contract or resolution approved or ratified by the shareholders pursuant to RCW.08.560 providers otherwise; or (iii) in the case of an advance of expenses, the director is entitled to the articles of incorporation, bylaws or any applicable resolution or contract, to payment or reimbursement of the director’s reasonable expenses incurred as a party to the proceeding in advance of final disposition of the proceeding.
The Registrant has purchased insurance with respect to, among other things, the liabilities that may arise under the statutory provisions referred to above. The Registrant’s directors and officers are also insured against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they are not indemnified by the Registrant.
Item 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
The exhibits to this Registration Statement are listed on the Exhibit Index included elsewhere herein.
Item 9.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; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value 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) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table set forth in this Registration Statement; and |
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| (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-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registrant 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 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, each filing of the Registrant’s Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer of 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 and will be governed by the final adjudication of such issue. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in Atlanta, Georgia, on this3rd day of January, 2006.
I2 TELECOM INTERNATIONAL, INC. | ||
By: | /s/ Paul R. Arena | |
| Paul R. Arena | ||
| Chairman and Chief Executive Officer | ||
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers and directors of i2 Telecom International, Inc. hereby constitutes and appoints each of Paul R. Arena, his attorney-in-fact and agent, each with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, in connection with the registration of the shares of the Registrant’s common stock under the Securities Act of 1933, with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that such attorney-in-fact and agent or his substitute may 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.
Name | Title | Date | ||
/s/ Paul R. Arena Paul R. Arena | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | January 3, 2006 | ||
/s/ Audrey L. Braswell Audrey L. Braswell | Director | January 3, 2006 | ||
/s/ James R. Rose James R. Rose | Director | January 3, 2006 | ||
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EXHIBIT INDEX
| Exhibit No. | Description | Method of Filing | ||
| 4.1 | i2 Telecom International, Inc. 2004 Stock Incentive Plan. | Filed with the Company’s Schedule 14A proxy statement filed May 10, 2004 and incorporated by reference. | ||
| 4.2 | Form of Stock Option Agreement. | Filed herewith. | ||
| 5.1 | Opinion of Richardson & Patel, LLP. | Filed herewith. | ||
| 23.1 | Consent of Freedman & Goldberg, Certified Public Accountants. | Filed herewith. | ||
| 23.2 | Consent of Richardson & Patel, LLP (contained in Exhibit 5.1 hereto). | Filed herewith. | ||
| 24.1 | Powers of Attorney (contained on the signature page hereto). | Filed herewith. | ||
