SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ePHONE TELECOM, INC.
(Exact Name of registrant as specified in its charter)
Florida 98-0204749
--------------- --------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1145 Herndon Parkway, Suite 100
Herndon, Virginia 20170-5535
(Address, including zip code, of principal executive offices)
ePHONE Telecom, Inc. 2000 Long-Term Incentive Plan
(Full title of the plan)
Charlie Rodriguez
Vice President - Corporate Affairs and Secretary
ePHONE Telecom, Inc.
1145 Herndon Parkway, Suite 100
Herndon, Virginia 20170-5535
(703) 787-7006
Fax No.: (703) 787-7009
(Name, address, including zip code, and telephone number including area code, of
agent for service)
Copy to:
Paul D. Freshour, Esq.
Arnold & Porter
Suite 900
1600 Tysons Boulevard
McLean, Virginia 22102-4865
(703) 720-7008
Fax No.: (703) 720-7399
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Calculation of Registration Fee
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Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per aggregate offering registration
unit(1)(2) price(2) fee
- ----------------------------- ----------------- --------------------- ---------------------- ----------------
- ----------------------------- ----------------- --------------------- ---------------------- ----------------
Common Stock 6,000,000 $0.35 $2,100,000 $193.20
- ----------------------------- ----------------- --------------------- ---------------------- ----------------
(1) Calculated on the basis of the average of the high and low sale
prices of the Registrant's Common Stock as reported on June 21, 2002 on
the Over-the-Counter Bulletin Board, which date is within 5 business
days prior to the date of the filing of this Registration Statement.
(2) Estimated solely for the purpose of determining the registration
fee in accordance with Rule 457(h).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by ePHONE Telecom, Inc. ("Registrant" or
"Company") (File No. 000-27699) with the Securities and Exchange Commission
("SEC") under the Securities Exchange Act of 1934, as amended ("Exchange Act"),
are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-KSB the year ended December 31,
2001.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2001.
(d) The description of the common stock of the Company, par value $0.001
per share ("Common Stock"), contained in the Company's registration
statement pursuant to Section 12 of the Exchange Act, and any
amendments or reports filed for the purpose of updating such
description.
All documents filed by the Registrant after the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all Common Stock offered hereby has been sold or which deregisters such
Common Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall 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 in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or so superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
The audited consolidated financial statements of the Company as of
December 31, 2001 and for the three years ended December 31, 2001, 2000 and
1999, which are included in the Annual Report on Form 10-KSB filed with the SEC
on April 15, 2002 that has been incorporated herein by reference, have been
incorporated herein in reliance on the reports of Grant Thornton LLP,
independent accountants, given on the authority of such firm as experts in
accounting and auditing.
Documents incorporated herein by reference in the future will include
financial statements, related schedules (if required) and independent auditors'
reports, which financial statements and schedules will have been audited to the
extent and for the periods set forth in such reports by the firm or firms
rendering such reports, and, to the extent so audited and consent to
incorporation by reference is given, will be incorporated herein by reference in
reliance upon such reports given on the authority of such firms as experts in
accounting and auditing.
Arnold & Porter, special counsel to the Company, has delivered its
legal opinion to the effect that the issuance and sale of the Common Stock
offered hereby have been duly authorized by the Company and that, when issued
upon the exercise of options and stock appreciation rights or as incentive
shares in accordance with the terms of the ePHONE Telecom, Inc. 2000 Long-Term
Incentive Plan and for legal consideration of not less than $0.001 per share,
will be validly issued and will be fully paid and nonassessable, and when issued
pursuant to the award of restricted stock in accordance with the terms of the
ePHONE Telecom, Inc. 2000 Long-Term Incentive Plan and for legal consideration
of not less than $0.001 per share, will be validly issued, and upon the lapse of
restrictions provided under such award, will be fully paid and nonassessable.
Item 6. Indemnification of Directors and Officers.
Florida Business Corporation Act
Subsection (1) of Section 607.0850 of the Florida Business Corporation
Act, referred to herein as the BCA, empowers 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 (other than 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 (including an
employee benefit plan), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner 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.
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Subsection (2) of Section 607.0850 of the BCA empowers 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 such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted
under similar standards, except that no indemnification may be made in respect
to any claim, issue or matter as to which such person shall have been adjudged
to be liable for negligence or misconduct in the performance of his duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought, or any other court of competent jurisdiction, shall determine
that despite the adjudication of liability, but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
BCA Section 607.0850 further provides that indemnification provided for
by Section 607.0850 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled and empowers the corporation to purchase
and maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him and incurred by him
in the capacities set forth above, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such
liabilities under Section 607.0850.
Who we indemnify
The Company's Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws state that the Company may provide for the
indemnification of any director, officer, employee, agent or other controlling
person of the Company affecting his or her liability in such capacity.
As of the date hereof, the Company has not agreed to grant
indemnification to any person pursuant to the foregoing statutory provisions.
The foregoing is only a general summary of certain aspects of Florida
law and the provisions of the Company's Amended and Restated Articles of
Incorporation and Amended and Restated Bylaws dealing with indemnification of
directors and officers and does not purport to be complete. It is qualified in
its entirety by references to the relevant statutes and the Company's Amended
and Restated Articles of Incorporation and Amended and Restated Bylaws, which
contain detailed specific provisions regarding the circumstances under which and
the persons for whose benefit indemnification shall or may be made, which are
incorporated herein by reference.
The Company has purchased an insurance policy that purports to insure
the officers and directors of the Corporation against certain liabilities
incurred by them in the discharge of their functions as such officers and
directors.
Item 7. Exemption from Registration Claimed
Not Applicable.
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Item 8. Exhibits
The exhibits listed on the Exhibit Index on page II-8 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
Item 9. Undertakings
The 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, as amended
(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 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% 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 (i) and (ii) do 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 Section
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
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;
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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;
4. That, for purposes of determining any liability under the
Securities Act, each filing of the Company'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 new securities at that time
shall be deemed to be the initial bona fide offering thereof.
5. 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 Securities and Exchange
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
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
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, as amended,
the Company 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 Herndon, Commonwealth of Virginia, on June 28,
2002.
ePHONE TELECOM, INC.
By: /s/ Carmine Taglialatela, Jr.
------------------------
Carmine Taglialatela, Jr.
President 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 in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Carmine Taglialatela, Jr. Director, President and CEO (Principal June 28, 2002
- --------------------------------------- Executive Officer)
Carmine Taglialatela, Jr.
/s/ Charlie Rodriguez Director, CFO and Secretary (Principal June 28, 2002
- --------------------------------------- Financial and Accounting Officer)
Charlie Rodriguez
/s/ Robert G. Clark Chairman of the Board June 28, 2002
- ---------------------------------------
Robert G. Clarke
/s/ Lawrence M. Codacovi* Director June 28, 2002
- ---------------------------------------
Lawrence M. Codacovi
/s/ John G. Fraser* Director June 28, 2002
- ---------------------------------------
John G. Fraser
Director June 28, 2002
- ---------------------------------------
Sheldon B. Kamins
Director June 28, 2002
- ---------------------------------------
Gene Sekulow
/s/ Robert Stuart* Director June 28, 2002
- ---------------------------------------
Robert Stuart
*By: /s/ Charlie Rodriguez
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Charlie Rodriguez
Attorney-In-Fact
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INDEX TO EXHIBITS
Exhibit 4 ePHONE Telecom, Inc. 2000 Long-Term Incentive Plan, filed
herewith.
Exhibit 5 Opinion of Arnold & Porter, filed herewith.
Exhibit 23.1 Consent of Arnold & Porter, included in the opinion filed
as Exhibit 5 hereto.
Exhibit 23.2 Consent of Grant Thornton LLP, filed herewith.
Exhibit 24 Powers of Attorney of certain directors of ePHONE Telecom,
Inc., filed herewith.
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