U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ECONNECT, INC.
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(Exact Name of Registrant as Specified in its Charter)
Nevada 43-1239043
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(State of Incorporation) I.R.S. Employer ID No.)
2500 Via Cabrillo Marina, California 90731
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(Address of principal executive offices) (Zip Code)
Amended and Restated Non-Employee Directors
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and Consultants Retainer Stock Plan (Amendment No. 4)
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(Full title of the Plan)
William B. Haseltine, Attorney at Law
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604 North Greenbrier Street, Arlington, Virginia 22203
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(Name and address of agent for service)
(703) 276-1919
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed Maximum Proposed Amount of
Securities to be Registered Offering Price Aggregate Registration Fee
Registered Per Share Offering Price
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Common Stock 5,125,000 $0.027/(1)/ $138,375.00 $33.07
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(1) Calculated under Rule 457(c): deemed issuance price as set forth in the
Non-Employee Directors and Consultants Retainer Stock Plan, attached as Exhibit
4.1 to this Form S-8.
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Part I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
See Item 2 below.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to each of the participants in accordance with Form S-8
and Rule 428 promulgated under the Securities Act of 1933. The participants
shall be provided a written statement notifying them that upon written or oral
request they will be provided, without charge, (a) the documents incorporated by
reference in Item 3 of Part II of the registration statement, and (b) other
documents required to be delivered pursuant to Rule 428(b). The statement will
inform the participants that these documents are incorporated by reference in
the Section 10(a) prospectus, and shall include the address (giving title or
department) and telephone number to which the request is to be directed.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following are hereby incorporated by reference: (a) The
Registrant's latest annual report on Form 10-KSB for the fiscal year ended
December 31, 2000. (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 Form
10-KSB referred to in (a) above. (c) A description of the securities of the
Registrant is contained in a Form SB-2 filed on July 30, 2001. 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, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be part
thereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
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Limitation of Liability. The articles of incorporation of the Registrant provide
that no Director or Officer of this company shall be liable to the Registrant or
its stockholders for any breach of fiduciary duty as Officer or Director of this
company. This provision shall not affect liability for acts or omissions, which
involve intentional misconduct, fraud, a knowing violation or law, or the
payment of dividends in violation of NRS 78.300. Indemnification. (a) Articles
of Incorporation. The articles of incorporation of the Registrant provide the
following with respect to indemnification: "All expenses incurred by Officers or
Directors in defending a civil or criminal action, suit, or proceeding, must be
paid by this company as they are incurred in advance of a final disposition of
the action, suit or proceeding, upon receipt of an undertaking by or on behalf
of a Director or Officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction, that he or she did not act in good faith, and
in the manner he or she reasonably believed to be or not opposed to the best
interests of this company." (b) Bylaws. The bylaws of the Registrant provide the
following with respect to indemnification: "Section 1. Definitions. For purposes
of this Article, "Indemnitee" shall mean each Director or Officer who was or is
a party to, or is threatened to be made a party to, or is otherwise involved in,
any Proceeding (as hereinafter defined), by reason of the fact that he or she is
or was a Director or Officer of this Corporation or is or was serving in any
capacity at the request of this Corporation as a Director, Officer, employee,
agent, partner, or fiduciary of, or in any other capacity for, another
corporation, partnership, joint venture, trust, or other enterprise. The term
"Proceeding" shall mean any threatened, pending or completed action or suit
(including, without limitation, an action, suit or proceeding by or in the right
of this Corporation), whether civil, criminal, administrative or investigative.
Section 2. Indemnification. Each Indemnitee shall be indemnified and held
harmless by this Corporation for all actions taken by him or her, and for all
omissions (regardless of the date of any such action or omission), to the
fullest extent permitted by Nevada law, against all expense, liability and loss
(including, without limitation, attorney fees, judgments, fines, taxes,
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding. Indemnification
pursuant to this Section shall continue as to an Indemnitee who has ceased to be
a Director or Officer and shall inure to the benefit of his or her heirs,
executors and administrators. This Corporation may, by action of its Board of
Directors, and to the extent provided in such action, indemnify employees and
other persons as though they were Indemnitees. The rights to indemnification as
provided in this Article shall be non-exclusive of any other rights that any
person may have or hereafter acquire under an statute, provision of this
Corporation's Articles of Incorporation or Bylaws, agreement, vote of
stockholders or Directors, or otherwise. Section 3. Financial Arrangements. This
Corporation may 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 this Corporation, or is or was serving at the request of this
Corporation in such capacity for another corporation, partnership, joint
venture, trust or other enterprise for any liability asserted against him or her
and liability and expenses incurred by him or her in such capacity, whether or
not this Corporation has the authority to indemnify him or her against such
liability and expenses. The other
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financial arrangements which may be made by this Corporation may include, but
are not limited to, (a) creating a trust fund; (b) establishing a program of
self-insurance; (c) securing its obligation of indemnification by granting a
security interest or other lien on any of this Corporation's assets, and (d)
establishing a letter of credit, guarantee or surety. No financial arrangement
made pursuant to this section may provide protection for a person adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable for intentional misconduct, fraud, or a knowing violation of law,
except with respect to advancing expenses or indemnification ordered by a court.
Any insurance or other financial arrangement made on behalf of a person pursuant
to this section may be provided by this Corporation or any other person approved
by the Board of Directors, even if all or part of the other person's stock or
other securities is owned by this Corporation. In the absence of fraud: (a) the
decision of the Board of Directors as to the propriety of the terms and
conditions of any insurance or other financial arrangement made pursuant to this
section, and the choice of the person to provide the insurance or other
financial arrangement is conclusive; and (b) the insurance or other financial
arrangement is not void or voidable; does not subject any Director approving it
to personal liability for his action; and even if a Director approving the
insurance or other financial arrangement is a beneficiary of the insurance or
other financial arrangement. Section 4. Contract of Indemnification. The
provisions of this Article relating to indemnification shall constitute a
contract between this Corporation and each of its Directors and Officers, which
may be modified as to any Director or Officer only with that person's consent or
as specifically provided in this section. Notwithstanding any other provision of
the Bylaws relating to their amendment generally, any repeal or amendment of
this Article which is adverse to any Director or Officer shall apply to such
Director or Officer only on a prospective basis and shall not limit the rights
of an Indemnitee to indemnification with respect to any action or failure to act
occurring prior to the time of such repeal or amendment. Notwithstanding any
other provision of these Bylaws, no repeal or amendment of these Bylaws shall
affect any or all of this Article so as to limit or reduce the indemnification
in any manner unless adopted by (a) the unanimous vote of the Directors of this
Corporation then serving, or (b) the stockholders as set forth in Article XII
hereof; provided that no such amendment shall have retroactive effect
inconsistent with the preceding sentence. Section 5. Nevada Law. References in
this Article to Nevada law or to any provision thereof shall be to such law as
it existed on the date these Bylaws were adopted or as such law thereafter may
be changed; provided that (a) in the case of any change which expands the
liability of an Indemnitee or limits the indemnification rights or the rights to
advancement of expenses which this Corporation may provide, the rights to
limited liability, to indemnification and to the advancement of expenses
provided in this Corporation's Articles of Incorporation, these Bylaws, or both
shall continue as theretofore to the extent permitted by law; and (b) if such
change permits this Corporation, without the requirement of any further action
by stockholders or Directors, to limit further the liability of Indemnitees or
to provide broader indemnification rights or rights to the advancement of
expenses than this Corporation was permitted to provide prior to such change,
liability thereupon shall be so limited and the rights to indemnification and
advancement of expenses shall be so broadened to the extent permitted by law."
(c) Nevada Revised Statutes. "NRS 78.7502
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Discretionary and mandatory indemnification of officers, directors, employees
and agents: General provisions. (1) A corporation may 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 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. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act 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 that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
(2) A corporation may 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 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. Indemnification may not be made for
any claim, issue or matter as to which such a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action or
suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper. (3) 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 in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense. NRS 78.751 Authorization required for discretionary
indemnification; advancement of expenses; limitation on indemnification and
advancement of expenses. (1) Any discretionary indemnification under NRS 78.7502
unless ordered by a court or advanced pursuant to subsection 2, 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: (i) By the stockholders; (ii)
By the board of directors
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by majority vote of a quorum consisting of directors who were not parties to the
action, suit or proceeding; (iii) 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 (iv) 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. (2) The articles of
incorporation, the bylaws or an agreement made by the corporation may provide
that the expenses of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the corporation as they are
incurred and in advance of the final disposition of the action, suit or
proceeding, upon receipt of an undertaking by or on behalf of the director or
officer to repay the amount if it is ultimately determined by a court of
competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law. (3) The
indemnification and advancement of expenses authorized in NRS 78.7502 or ordered
by a court pursuant to this section: (i) Does not exclude any other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either an action in
his official capacity or an action in another capacity while holding his office,
except that indemnification, unless ordered by a court pursuant to or for the
advancement of expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or officer if a final adjudication establishes that his
acts or omissions involved intentional misconduct, fraud or a knowing violation
of the law and was material to the cause of action. (ii) Continues for a person
who has ceased to be a director, officer, employee or agent and inures to the
benefit of the heirs, executors and administrators of such a person. NRS 78.752
Insurance and other financial arrangements against liability of directors,
officers, employees and agents. (1) A corporation may 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. (2) The other
financial arrangements made by the corporation pursuant to subsection 1 may
include the following: (i) The creation of a trust fund. (ii) The establishment
of a program of self-insurance. (iii) The securing of its obligation of
indemnification by granting a security interest or other lien on any assets of
the corporation. (iv) The establishment of a letter of credit, guaranty or
surety. No financial arrangement made pursuant to this subsection may provide
protection for a person adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, 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. (3) Any insurance or other
financial arrangement made on behalf of a person pursuant to this section may be
provided by the corporation or any other person approved by the board of
directors, even if all or part of
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the other person's stock or other securities is owned by the corporation. (4) In
the absence of fraud: (i) The decision of the board of directors as to the
propriety of the terms and conditions of any insurance or other financial
arrangement made pursuant to this section and the choice of the person to
provide the insurance or other financial arrangement is conclusive; and (ii) The
insurance or other financial arrangement: (A) Is not void or voidable; and (B)
Does not subject any director approving it to personal liability for his action,
even if a director approving the insurance or other financial arrangement is a
beneficiary of the insurance or other financial arrangement. (5) A corporation
or its subsidiary which provides self- insurance for itself or for another
affiliated corporation pursuant to this section is not subject to the provisions
of Title 57 of NRS."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (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 together, represent a fundamental change in the
information in the registration statement; and (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; (2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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) 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 section 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 the registration statement shall be deemed to be a
new registration statement relating to the securities offered
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therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) 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 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are 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.
(h) That 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, 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
authorize, in the City of San Pedro, State of California, on December 4, 2001.
eConnect
By:/s/ Thomas S. Hughes
Thomas S. Hughes, President
Special Power of Attorney
The undersigned constitute and appoint Thomas S. Hughes their true and lawful
attorney-in-fact and agent with full power of substitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Form S-8 Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the U.S. Securities and
8
Exchange Commission, granting such attorney-in-fact the full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully and to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that such
attorney-in-fact 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 date
indicated:
Signature Title Date
/s/ Thomas S. Hughes President/Chief Executive December 4, 2001
Thomas S. Hughes Officer/ Director
/s/ Jack M. Hall Secretary/Director December 4, 2001
Jack M. Hall
/s/ Laurence Donoghue/Director December 4, 2001
Laurence Donoghue
/s/ Mary Lou Garcia, Accounting Manager December 3, 2001
Mary Lou Garcia (principal financial and accounting officer)
EXHIBIT INDEX
Exhibit Description No.
3.1 Articles of Incorporation, dated March 8, 1999 (incorporated by reference
to Exhibit 3.1 of Form SB-2/A filed July 22, 1999.)
3.2 Certificate of Amendment of Articles of Incorporation, dated May 25, 1999
(incorporated by reference to Exhibit 3.2 of the Form SB-2/A filed on
July 22, 1999).
3.3 Certificate of Amendment of Articles of Incorporation, dated August 20,
1999 (incorporated by reference to Exhibit 3.3 of the Form SB-2/A filed
on September 3, 1999).
3.4 Certificate of Amendment of Articles of Incorporation, dated November 20,
2000 (incorporated by reference to Exhibit 3.4 of the Form SB-2/A filed
May 6, 2001).
3.5 Certificate of Amendment of Articles of Incorporation, dated July 12,
2001 (incorporated by reference to Exhibit 3.5 of the Form S-8 filed
August 6, 2001)
4.1 Amended and Restated Non-Employee Directors and Consultants Retainer
Stock Plan (Amendment No. 4) (incorporated by reference to Form S-8,
filed May 2, 2001.)
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4.2 Consulting Services Agreement between the Registrant and Paul Kessler,
dated December 4, 2001 (see below).
4.3 Consulting Services Agreement between the Registrant and Mark L. Baum,
dated December 4, 2001 (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountants (see below).
23.2 Consent of Counsel (see below Exhibit 24 Special Power of Attorney (see
signature page).
24 Special Power of Attorney (see signature page).