As filed with the Securities and Exchange Commission on May 1, 2000.
Registration No. 333-____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
DIAL-THRU INTERNATIONAL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 75-2801677
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8100 Jetstar Drive, Suite 100 75063
Irving, Texas (Zip Code)
(Address of Principal Executive Offices)
_________________________
COMMON STOCK PURCHASE WARRANTS
FOR CERTAIN EMPLOYEES AND CONSULTANTS OF
DIAL-THRU INTERNATIONAL CORPORATION
(Full title of the plans)
_________________________
Roger D. Bryant Copy to:
Chairman and Chief Executive Officer William L. Rivers, Esq.
DIAL-THRU INTERNATIONAL CORPORATION ARTER & HADDEN LLP
8100 Jetstar Drive, Suite 100 1717 Main St., Suite 4100
Irving, Texas 75063 Dallas, Texas 75201-4605
(Name and address of (214) 761-2100
agent for service)
(972) 929-1920
(Telephone number,
including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Registered(1) Proposed Maximum Offering Proposed Maximum Amount of Registration
Registered Price Per Share Aggregate Offering Price Fee
Common Stock $.001 par 20,000 shares 0.45(3) $ 9,000 $ 3.00
value(2)
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Common Stock $.001 par 50,000 shares 0.46(3) $ 23,000 $ 6.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.53(3) $ 26,500 $ 7.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.55(3) $ 27,500 $ 8.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 50,000 shares 0.80(3) $ 40,000 $ 11.00
value(2)
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Common Stock $.001 par 110,000 shares 0.81(3) $ 89,100 $ 24.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 100,000 shares 0.88(3) $ 88,000 $ 24.00
value(2)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock $.001 par 720,000 shares 1.44(3) $1,036,800 $274.00
value(2)
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TOTAL 1,150,000 $1,339,900 $357.00
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(1) Pursuant to Rule 416, shares of Common Stock of the Registrant issuable
upon exercise of Common Stock Purchase Warrants ("Compensation Contracts")
granted to certain consultants of the Registrant in order to prevent dilution
resulting from any future stock split, stock divided or similar transactions are
also being registered hereunder.
(2) Represents the shares of Common Stock reserved for issuance under the
Compensation Contracts.
(3) Based on the price per share pursuant to which outstanding Compensation
Contracts can be exercised pursuant to Rule 457(h).
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EXPLANATORY NOTE
Purpose.
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This Registration Statement is being filed for the purposes of registering
up to 1,150,000 shares of the Registrant's Common Stock issuable upon exercise
of certain Common Stock Purchase Warrants ("Compensation Contracts") granted by
the Registrant to certain of its employees and consultants. The Registrant
represents that the Compensation Contracts have been issued under an "employee
benefit plan," as that term is defined pursuant to Rule 405 of Regulation C.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference:
(a) our Annual Report on Form 10-K, filed with the Commission for the
fiscal year ended October 31, 1999;
(b) our Quarterly Report on Form 10-Q filed with the Commission for the
quarter ended January 31, 2000; and
(c) all documents filed by the Registrant 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 shall be deemed to be
incorporated herein by reference and to be a part hereof from the date
of filing of such documents until such time as there shall have been
filed a post-effective amendment that indicates that all securities
offered under the Registration Statement have been sold or that
deregisters all securities remaining unsold at the time of the
amendment.
Any statement contained herein or 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 the statement
contained herein or in any subsequently filed document that also is or is deemed
to be incorporated by reference herein, or in any document forming any part of
the Section 10(a) Prospectus to be delivered to participants in connection with,
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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation provides that the Registrant
shall indemnify its directors and officers to the fullest extent permitted by
the Delaware General Corporation Law ("DGCL").
Section 145 of the DGCL permits a corporation, under specified
circumstances, to indemnify its directors, officers, employees or agents against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlements actually and reasonably incurred by them in connection with any
action, suit or proceeding brought by third parties by reason of the fact that
they were or are directors, officers, employees or agents, acted in good faith
and in a manner they 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 their conduct was unlawful. In a
derivative action (i.e., one by or in the right of the corporation),
indemnification may be made only for expenses actually and reasonably incurred
by directors, officers, employees or agents in connection with the defense or
settlement of an action or suit, and only with respect to a matter as to which
they shall have acted in good faith and in a manner they reasonably believed to
be in or not opposed to the best interests of the corporation, except that no
indemnification shall be made if such persons have been adjudged liable to the
corporation, unless and only to the extent that the court in which the action or
suit was brought shall determine upon application that the defendant directors,
officers, employees or agents are fairly and reasonably entitled to indemnity
for such expenses, despite such adjudication of liability.
Section 102(b)(7) of the DGCL permits a corporation organized under
Delaware law to eliminate or limit the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director subject to certain limitations. The Registrant's Certificate
of Incorporation includes the following provision:
No director of the Corporation shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director of the Corporation, PROVIDED, HOWEVER, that
the foregoing is not intended to eliminate or limit the liability of a
director of the Corporation for (i) any breach of a director's duty of
loyalty to the Corporation or its stockholders, (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) a violation of Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment or repeal of this
Article NINTH shall apply to or have any effect on the liability or alleged
liability of any director of the Corporation for or with respect to any
acts or omissions of such director occurring prior to such amendment.
2
The Registrant's Bylaws further provides for the indemnification of, and
advancement of expenses to, its officers and directors in certain circumstances.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
--------------- ----------------------------------------------------------
4.1 Common Stock Purchase Warrant issued to Thomas Rinehart
dated April 26, 1999
4.2 Common Stock Purchase Warrant issued to Lyle M. Green
dated November 2, 1999
4.3 Common Stock Purchase Warrant issued to Ivor Flannery
dated December 22, 1999
4.4 Common Stock Purchase Warrant issued to Masoud Safi dated
December 22, 1999
4.5 Common Stock Purchase Warrant issued to Kamran Ahmad dated
December 22, 1999
4.6 Common Stock Purchase Warrant issued to Tom Schnaible
dated December 22, 1999
4.7 Common Stock Purchase Warrant issued to Don Thorn dated
December 22, 1999
4.8 Common Stock Purchase Warrant issued to Carl Peterson
dated December 22, 1999
4.9 Common Stock Purchase Warrant issued to Robert Trail dated
December 22, 1999
4.10 Common Stock Purchase Warrant issued to Patrick Doualle
dated December 22, 1999
4.11 Common Stock Purchase Warrant issued to Tim Dotson dated
December 22, 1999
4.12 Common Stock Purchase Warrant issued to Lawrence Vierra
dated December 22, 1999
4.13 Amended and Restated Common Stock Purchase Warrant issued
to Alvaro Restrepo dated March 1, 2000
4.14 Amended and Restated Common Stock Purchase Warrant issued
to Paul Saunier dated March 1, 2000
3
4.15 Amended and Restated Common Stock Purchase Warrant issued
to Eric Iffland dated March 1, 2000
4.16 Amended and Restated Common Stock Purchase Warrant issued
to Emilio Martinez dated March 1, 2000
4.17 Amended and Restated Common Stock Purchase Warrant issued
to Alfredo Polo dated March 1, 2000
4.18 Amended and Restated Common Stock Purchase Warrant issued
to Carlos Bedoya dated March 1, 2000
4.19 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
4.20 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
5.1 Opinion of Arter & Hadden LLP, as to the validly of the
shares of Common Stock offered hereby (including shares of
Common Stock issuable upon exercise of the Compensation
Contracts)
23.1 Consent of Arter & Hadden LLP (included as part of Exhibit
5.1)
23.2 Consent of King, Griffin & Adamson P.C., independent
auditors
23.3 Consent of Ernst & Young LLP, independent auditors
4
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 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 the 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 clauses (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
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 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 therein, 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 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 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.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Irving, Texas, on April 28, 2000.
DIAL-THRU INTERNATIONAL CORPORATION
By: /s/ Roger D. Bryant
-------------------
Roger D. Bryant
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons and in the
capacities indicated on April 28, 2000.
Signatures Titles
- ------------------------- -----------------------------------------------------
/s/ Roger D. Bryant Chairman, Chief Executive Officer and Director
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Roger D. Bryant (Principal Executive Officer)
/s/ John Jenkins Chief Operating Officer, Chief Financial Officer,
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John Jenkins President and Director
(Principal Financial and Accounting Officer)
/s/ Lawrence Vierra Executive Vice President and Director
- -------------------------
Lawrence Vierra
/s/ Nick DeMare Director
- -------------------------
Nick DeMare
/s/ Robert M. Fidler Director
- -------------------------
Robert M. Fidler
/s/ Scott D. Cook Director
- -------------------------
Scott D. Cook
6
INDEX TO EXHIBITS
Exhibit Description
--------------- -----------------------------------------------------------
4.1 Common Stock Purchase Warrant issued to Thomas Rinehart
dated April 26, 1999
4.2 Common Stock Purchase Warrant issued to Lyle M. Green dated
November 2, 1999
4.3 Common Stock Purchase Warrant issued to Ivor Flannery dated
December 22, 1999
4.4 Common Stock Purchase Warrant issued to Masoud Safi dated
December 22, 1999
4.5 Common Stock Purchase Warrant issued to Kamran Ahmad dated
December 22, 1999
4.6 Common Stock Purchase Warrant issued to Tom Schnaible dated
December 22, 1999
4.7 Common Stock Purchase Warrant issued to Don Thorn dated
December 22, 1999
4.8 Common Stock Purchase Warrant issued to Carl Peterson dated
December 22, 1999
4.9 Common Stock Purchase Warrant issued to Robert Trail dated
December 22, 1999
4.10 Common Stock Purchase Warrant issued to Patrick Doualle
dated December 22, 1999
4.11 Common Stock Purchase Warrant issued to Tim Dotson dated
December 22, 1999
4.12 Common Stock Purchase Warrant issued to Lawrence Vierra
dated December 22, 1999
4.13 Amended and Restated Common Stock Purchase Warrant issued
to Alvaro Restrepo dated March 1, 2000
4.14 Amended and Restated Common Stock Purchase Warrant issued
to Paul Saunier dated March 1, 2000
4.15 Amended and Restated Common Stock Purchase Warrant issued
to Eric Iffland dated March 1, 2000
4.16 Amended and Restated Common Stock Purchase Warrant issued
to Emilio Martinez dated March 1, 2000
4.17 Amended and Restated Common Stock Purchase Warrant issued
to Alfredo Polo dated March 1, 2000
7
4.18 Amended and Restated Common Stock Purchase Warrant issued
to Carlos Bedoya dated March 1, 2000
4.19 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
4.20 Amended and Restated Common Stock Purchase Warrant issued
to Juan Carlos Gaviria dated March 1, 2000
5.1 Opinion of Arter & Hadden LLP, as to the validly of the
shares of Common Stock offered hereby (including shares of
Common Stock issuable upon exercise of the Compensation
Contracts)
23.1 Consent of Arter & Hadden LLP (included as part of Exhibit
5.1)
23.2 Consent of King, Griffin & Adamson P.C., independent
auditors
23.3 Consent of Ernst & Young LLP, independent auditors
8