SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ELEPHANT TALK COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 95-2210753
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
19222 Pioneer Blvd., Suite 100, Cerritos, California 90703
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(Address of Principal Executive Offices, including ZIP Code)
Option Agreement with Tang Wai Leong
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(Full title of the plan)
Mr. Manu Ohri, 19222 Pioneer Blvd., Suite 100, Cerritos, California 90703
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(Name and address of agent for service)
(562) 653-0400
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount of Shares Offering Aggregate Offering Registration
to be Registered to be Registered Price Per Share(1) Price(1) Fee
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$.00 par value
Common Stock 2,000,000 $0.40 $ 800,000 $73.60
TOTALS 2,000,000 N/A $ 800,000 $73.60
(1) This calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457 under the
Securities Act and is calculated on the basis of the price at which the
securities are to be offered to the public.
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PROSPECTUS
ELEPHANT TALK COMMUNICATIONS, INC.
19222 Pioneer Blvd., Suite 100, Cerritos, CA 90703
(562) 653-0400
2,000,000 SHARES OF COMMON STOCK UNDERLYING STOCK OPTIONS
This Prospectus relates to the offer and sale by Elephant Talk Communications,
Inc., a California corporation ("ElephantTalk"), of shares of its no par value
per share common stock (the "Common Stock") to certain consultant and advisor
(the "Consultant") pursuant to option agreements entered into between the
Company and the Consultant for payment of services to be rendered. ElephantTalk
is registering hereunder and then issuing, upon receipt of adequate
consideration therefore, to the Consultant 2,000,000 shares of Common Stock
underlying certain stock options in consideration for services to be performed
under the respective agreement.
The Common Stock is not subject to any restriction on transferability.
Recipients of shares other than persons who are "affiliates" of ElephantTalk
within the meaning of the Securities Act of 1933 (the "Act") may sell all or
part of the shares in any way permitted by law, including sales in the
over-the-counter market at prices prevailing at the time of such sale. Of the
shares registered hereunder, no shares are being registered to an affiliate of
ElephantTalk. An affiliate is summarily, any director, executive officer or
controlling shareholder of ElephantTalk or anyone of its subsidiaries. An
"affiliate" of ElephantTalk is subject to Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If a Consultant who is
not now an "affiliate" becomes an "affiliate" of the ElephantTalk in the future,
he would then be subject to Section 16(b) of the Exchange Act.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is April 16, 2002.
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This Prospectus is part of a Registration Statement which was filed and became
effective under the Securities Act of 1933, as amended (the "Securities Act"),
and does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted pursuant to the rules and
regulations promulgated by the U.S. Securities and Exchange Commission (the
"Commission") under the Securities Act. The statements in this Prospectus as to
the contents of any contracts or other documents filed as an exhibit to either
the Registration Statement or other filings by ElephantTalk with the Commission
are qualified in their entirety by the reference thereto.
A copy of any document or part thereof incorporated by reference in this
Prospectus but not delivered herewith will be furnished without charge upon
written or oral request. Requests should be addressed to: Elephant Talk
Communications, Inc., 19222 Pioneer Blvd., Suite 100, Cerritos, CA 90703. Tel
No. (562) 653-0400.
ElephantTalk is subject to the reporting requirements of the Exchange Act and in
accordance therewith files reports and other information with the Commission.
These reports, as well as the proxy statements, information statements and other
information filed by ElephantTalk under the Exchange Act may be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W. Washington D.C. 20549. Copies may be obtained at the
prescribed rates. ElephantTalk's stock has been traded on the over-the-counter
market since 1994 and is currently reported by the National Quotation Bureau
Electronic Bulletin Board.
No person has been authorized to give any information or to make any
representation, other than those contained in this Prospectus, and, if given or
made, such other information or representation must not be relied upon as having
been authorized by ElephantTalk. This Prospectus does not constitute an offer or
a solicitation by anyone in any state in which such is not authorized or in
which the person making such is not qualified or to any person to whom it is
unlawful to make an offer or solicitation.
Neither the delivery of this Prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there has not been a change in
the affairs of ElephantTalk since the date hereof.
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TABLE OF CONTENTS
Information Required in the Section 10(a) Prospectus 6
Item 1. Plan Information 6
General Information 6
The Company 6
Purposes 6
Common Stock 6
The Consultant 6
No Restrictions on Transfer 6
Tax Treatment to the Consultant 7
Tax Treatment to ElephantTalk 7
Restrictions on Re-sales 7
Documents Incorporated by Reference and Additional Information 8
Item 2. Registrant Information and Employee Plan Annual Information 8
Legal Opinion and Experts 8
Indemnification of Officers and Directors 8
Information Required in the Registration Statement 9
Item 3. Incorporation of Documents by Reference 9
Item 4. Description of Securities 9
Item 5. Interests of Named Experts and Counsel 9
Item 6. Indemnification of Directors and Officers 9
Item 7. Exemption from Registration Claimed 10
Item 8. Exhibits 10
Item 9. Undertakings 10
Signatures . . . . . . . 12
Exhibit Index . . . . . 13
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PART I: INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information
GENERAL INFORMATION
The Company
ElephantTalk has its principal executive offices at 19222 Pioneer Blvd., Suite
100, Cerritos, CA 90703, where its telephone number is (562) 653-0400.
Purposes
The Common Stock to be issued by ElephantTalk to certain Consultant will be
issued pursuant to option agreements entered into between Consultant and
ElephantTalk, which the agreements have been approved by the Board of Directors
of ElephantTalk (the "Board of Directors"). The agreements are intended to
provide a method whereby ElephantTalk may be stimulated by the personal
involvement of the Consultant in ElephantTalk's future prosperity, thereby
advancing the interests of ElephantTalk, and all of its shareholders. Subject to
the terms of the agreements, the Consultant will have the right to exercise the
option in whole or in part until April 10, 2003. A Copy of the Option Agreement
has been filed as an exhibit to this Registration Statement.
Common Stock
The Board has authorized the issuance of up to 2,000,000 shares of the Common
Stock to the Consultant and upon effectiveness of this Registration Statement.
The Consultant
The Consultant has agreed to provide their expertise and advice to ElephantTalk
for the purposes set forth in their agreement with ElephantTalk.
No Restrictions on Transfer
The Consultant will become the record and beneficial owners of the shares of
Common Stock upon issuance and delivery and are entitled to all of the rights of
ownership, including the right to vote any shares awarded and to receive
ordinary cash dividends on the Common Stock.
Tax Treatment to the Consultant
The Common Stock is not qualified under Section 401(a) of the Internal Revenue
Code. The Consultant, therefore, will be required for federal income tax
purposes to recognize ordinary income during the taxable year in which the first
of the following events occurs: (a) the shares become freely transferable, or
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(b) the shares cease to be subject to a substantial risk of forfeiture.
Accordingly, absent a specific contractual provision to the contrary the
Consultant will receive compensation taxable at ordinary rates equal to the fair
market value of the shares on the date of receipt since there will be no
substantial risk of forfeiture or other restrictions on transfer. If, however,
the Consultant receive shares of common stock pursuant to the exercise of an
option or options at an exercise price below the fair market value of the shares
on the date of exercise, the difference between the exercise price and the fair
market value of the stock on the date of exercise will be deemed ordinary income
for federal income tax purposes. The Consultant is urged to consult each of
their tax advisors on this matter. Further, if any recipient is an "affiliate,"
Section 16(b) of the Exchange Act is applicable and will affect the issue of
taxation.
Tax Treatment to ElephantTalk
The amount of income recognized by any recipient hereunder in accordance with
the foregoing discussion will be an expense deductible by ElephantTalk for
federal income tax purposes in the taxable year of ElephantTalk during which the
recipient recognizes income.
Restrictions on Re-sales
In the event that an affiliate of ElephantTalk acquires shares of Common Stock
hereunder, the affiliate will be subject to Section 16(b) of the Exchange Act.
Further, in the event that any affiliate acquiring shares hereunder has sold or
sells any shares of Common Stock in the six months preceding or following the
receipt of shares hereunder, any so called "profit", as computed under Section
16(b) of the Exchange Act, would be required to be disgorged from the recipient
to ElephantTalk. Services rendered have been recognized as valid consideration
for the "purchase" of shares in connection with the "profit" computation under
Section 16(b) of the Exchange Act. ElephantTalk has agreed that for the purpose
of any "profit" computation under Section 16(b) the price paid for
ElephantTalk's Common Stock issued hereunder to affiliates is equal to the value
of services rendered. Shares of ElephantTalk's Common Stock acquired hereunder
by persons other than affiliates are not subject to Section 16(b) of the
Exchange Act.
DOCUMENTS INCORPORATED BY REFERENCE AND ADDITIONAL INFORMATION
ElephantTalk hereby incorporates by reference (i) its annual report on Form
10-KSB for the year ended September 30, 2001, filed pursuant to Section 13 of
the Exchange Act, (ii) any and all Quarterly Reports and Current Reports on
Forms 10-Q (or 10-QSB or 8-K) which were not reviewed by independent certified
public accountants, filed under the Securities or Exchange Act subsequent to the
filing of ElephantTalk's Annual Report on Form 10-K (or 10-KSB) for the fiscal
year ended September 30, 2001, as well as all other reports filed under Section
13 of the Exchange Act, and (iii) its annual report, if any, to shareholders
delivered pursuant to Rule 14a-3 of the Exchange Act. In addition, all further
documents filed by ElephantTalk pursuant to Section 13, 14, or 15(d) of the
Exchange Act prior to the termination of this offering are deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing. All documents which when together, constitute this Prospectus,
will be sent or given to participants by the Registrant as specified by Rule
428(b)(1) of the Securities Act.
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Item 2. Registrant Information and Employee Plan Annual Information
A copy of any document or part thereof incorporated by reference in this
Registration Statement but not delivered with this Prospectus or any document
required to be delivered pursuant to Rule 428(b) under the Securities Act will
be furnished without charge upon written or oral request. Requests should be
addressed to: Elephant Talk Communications, Inc., 19222 Pioneer Blvd., Suite
100, Cerritos, CA 90703, Telephone No. (562) 653-0400.
Legal Opinion and Experts
John A. Furutani has rendered an opinion on the validity of the securities being
registered. Mr. Furutani is not an "affiliate" of ElephantTalk. He currently
owns 750 shares of common stock of ElephantTalk.
The consolidated financial statements of Elephant Talk Communications, Inc.
incorporated by reference in this Prospectus for the year ended September 30,
2001 have been audited by Seller and Associates, P.C., independent certified
public accountants, as set forth in their report incorporated herein by
reference, and are incorporated herein in reliance upon such report given upon
the authority of said firm as experts in auditing and accounting.
Indemnification of Officers and Directors
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of registrant
pursuant to the foregoing provisions, or otherwise, 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 registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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 is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Registrant hereby states that (i) all documents set forth in (a) through (c),
below, are incorporated by reference in this registration statement, and (ii)
all documents subsequently filed by registrant pursuant to Section 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which de-registers all securities 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.
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(a) Registrant's latest Annual Report, whether filed pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(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 annual report referred to in
(a), above; and
(c) The latest prospectus filed pursuant to Rule 424(b) under the Securities
Act.
Item 4. Description of Securities
No description of the class of securities (i.e. no par value Common Stock) is
required under this item because the Common Stock is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Mr. Furutani presently owns 750 shares of Common Stock of ElephantTalk.
Item 6. Indemnification of Directors and Officers
No officer or Director shall be personally liable for any obligations of the
corporation or for any duties or obligations arising out of any acts or conduct
of said officer or director performed for or on behalf of the corporation. The
corporation shall and does hereby indemnify and hold harmless each person and
his heirs and administrators who shall serve at any time hereafter as a Director
or officer of the corporation from and against any and all claims, judgments and
liabilities to which such persons shall become subject by reason of his having
heretofore or hereafter been a Director or officer of the corporation or by
reason of any action alleged to have been heretofore or hereafter taken or
omitted to have been taken by him as such Director or officer, and shall
reimburse each such person for all legal and all other expenses reasonably
incurred by him in connection with any such claim or liability, including power
to defend such person from all suits or claims as provided for under the
provisions of the California General Corporation Laws; provided, however, that
no such person shall be indemnified against, or be reimbursed for, any expense
incurred in connection with any claim or liability arising out of his own
negligence or willful misconduct. The rights accruing to any person under the
foregoing provisions of this section shall not exclude any right to which he may
lawfully be entitled, nor shall anything herein contained restrict the right of
the corporation to indemnify or reimburse such person in any proper case, even
though not specifically herein provided for. The corporation, its directors,
officers, Consultant and agents shall be fully protected in taking any action or
making any payment, or in refusing so to do in reliance upon the advice of
counsel.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
(a) The following exhibits are filed as part of this registration statement
pursuant to Item 601 of Regulation S-B and are specifically incorporated herein
by this reference:
Exhibit No. Title
5.1 Opinion of John A. Furutani regarding the legality of the
securities registered.
10.1 Option Agreement with Tang Wai Leong
23.3 Consent of John A. Furutani, special counsel to registrant, to
the use of his opinion with respect to the legality of the
securities being registered hereby and to the references to
him in the Prospectus filed as a part hereof.
23.4 Consent of Sellers and Associates P.C., independent auditors
of registrant.
Item 9. 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 to:
(i) include any prospectus required by Section 10 (a) (3) of the Securities
Act;
(ii) 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, represents a fundamental
change in the information set forth in the registration statement;
(iii) 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, paragraphs (i) and (ii) shall not apply if the information
required to be included in a post-effective amendment by those paragraphs are
incorporated by reference from periodic reports filed by the registrant small
business issuer under the Exchange Act.
(2) That, for the purpose of determining any liability under the Securities
Act, each post-effective amendment to 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.
(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.
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(4) To deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14e-3 under the
Securities Exchange Act of 1934; and, where interim financial information
require to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of registrant's annual report
pursuant to Section 13(a) of the Securities 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 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.
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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 the City of Cerritos, State of California on the 25th day of
April, 2002.
Elephant Talk Communications, Inc.
(Registrant)
By: /s/ Russelle Choi
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Mr. Russelle Choi,
Chief executive officer
Pursuant to the requirements of the 1933 Act, this registration statement or
amendment has been signed by the following persons in the capacities and on the
dates indicated:
Signatures Title Date
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Mr. Russelle Choi Director April 25, 2002
Mr. Stephen Tang Director April 25, 2002
Mr. Ken Ieong Director April 25, 2002
Mr. Dennis Poon Director April 25, 2002
Mr. Manu Ohri Director April 25, 2002
and Principal
Accounting Officer
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FORM S-8 REGISTRATION STATEMENT
EXHIBIT INDEX
The following Exhibits are filed as part of this registration statement pursuant
to Item 601 of Regulation S-B and are specifically incorporated herein by this
reference:
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Exhibit Number
in Registration Numbered
Statement Description Page
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5. 1 Opinion of Counsel 14
10.1 Option Agreement with Tang Wai Leong 17
23.3 Consent of John A. Furutani Use of Opinion 22
23.4 Consent of Sellers and Associates, P.C. 23
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