As filed with the Securities and Exchange Commission on September 8, 1999.
Registration No. 333-____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ARDIS TELECOM & TECHNOLOGIES, INC.
(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
IRVING, TEXAS 75063
(Address of Principal Executive Offices) (Zip Code)
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ARDIS TELECOM & TECHNOLOGIES, INC.
AMENDED STOCK OPTION PLAN
AND
PERFORMANCE WARRANTS
FOR CERTAIN EXECUTIVE OFFICERS AND KEY EMPLOYEES OF ARDIS TELECOM &
TECHNOLOGIES, INC.
(Full title of the plans)
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ROGER D. BRYANT COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER WILLIAM L. RIVERS, ESQ.
ARDIS TELECOM & TECHNOLOGIES, INC. 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)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM AGGREGATE OFFERING AMOUNT OF
BE REGISTERED REGISTERED(1) OFFERING PRICE PER SHARE PRICE REGISTRATION FEE
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Common Stock $.001 1,100,000 shares (2) $ 943,341(2) $263(3)
par value(4)
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Common Stock $.001 875,000 shares 0.53(6) $ 463,750 $129
par value(5)
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TOTAL 1,975,000 $1,407,091 $392
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(1) Pursuant to Rule 416, shares of Common Stock of the Registrant
issuable (i) pursuant to the exercise of options granted or to be granted
under the ARDIS Telecom & Technologies, Inc. Stock Option Plan (the "Plan")
and (ii) upon exercise of Performance Warrants ("Compensation Contracts")
granted to certain executive officers and key employees 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) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee as follows: (i) the maximum proposed
offering price at which outstanding options under the Plan (1,028,990 shares
of Common Stock) may be exercised is $905,706 and (ii) the maximum proposed
offering price at which unissued options may be exercised under the Plan
(71,010 shares of Common Stock) is $37,635 calculated on the basis of the
market price per share of Common Stock on the NASD's OTCBB on September 3,
1999 ($0.53), in accordance with Rule 457(c).
(3) Relates only to additional shares registered hereby and does not
include the amount of the registration fee previously paid in connection with
the 1,200,000 shares of Common Stock previously registered by that
Registration Statement on Form S-8 filed with the Commission on March 14,
1997 (Reg. No. 333-23313).
(4) Represents additional shares of Common Stock reserved for
issuance under the Plan.
(5) Represents the shares of Common Stock reserved for issuance
under the Compensation Contracts.
(6) 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.
This Registration Statement is being filed for the purposes of (1)
registering an additional 1,100,000 shares of the Registrant's Common Stock
issuable pursuant to stock options granted under the Registrant's Stock
Option Plan for which a Registration Statement on Form S-8 (No. 333-23313) is
currently effective and (2) registering up to 875,000 shares of the
Registrant's Common Stock issuable upon exercise of certain Performance
Warrants ("Compensation Contracts") granted by the Registrant to certain of
its executive officers and key employees.
REGISTRATION OF ADDITIONAL SECURITIES.
The Registrant's Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on March 14, 1997 (No. 333-23313) is
hereby incorporated by reference.
COMPENSATION CONTRACTS.
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 (or
by Canmax, Inc., the Registrant's predecessor) with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference:
(a) our Annual Report on Form 10-K, as amended by Amendment No. 1
on Form 10-K/A, filed with the Commission for the fiscal year
ended October 31, 1998;
(b) our Quarterly Reports on Form 10-Q filed with the Commission
for the quarters ended January 31, 1999 and April 30, 1999;
(c) our Current Report on Form 8-K dated December 7, 1998; and
(d) 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:
3
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.
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
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4.1 Amended and Restated Stock Option Plan (filed as Exhibit 4.3 to the
Registrant's Annual Report on Form 10-K for the year ended October 31,
1998 and incorporated herein by reference)
4.2 Form of Stock Option Agreement (filed as Exhibit 10.2 to the Registrant's
Registration Statement on Form 10 filed on October 5, 1993 and
incorporated herein by reference)
4.3 Amended Common Stock Purchase Warrant issued to Roger D. Bryant dated July
1, 1997 and amended July 20, 1998 (filed herewith)
4.4 Amended Common Stock Purchase Warrant issued to Debra L. Burgess dated
July 1, 1997 and amended July 20, 1998 (filed herewith)
4.5 Common Stock Purchase Warrant issued to Roger D. Bryant dated July 1, 1998
(filed herewith)
4.6 Common Stock Purchase Warrant issued to Debra L. Burgess dated July 1,
1998 (filed herewith)
4.7 Common Stock Purchase Warrant issued to Ivor J. Flannery dated July 20,
1998 (filed herewith)
4
4.8 Common Stock Purchase Warrant issued to Scott R. Matthews dated July 20,
1998 (filed herewith)
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 stock options and the Compensation Contracts) (filed herewith)
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 (filed
herewith)
23.3 Consent of Ernst & Young LLP (filed herewith)
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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.
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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 September 8, 1999.
ARDIS TELECOM & TECHNOLOGIES, INC.
By: /s/ Roger D. Bryant
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Roger D. Bryant
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
and in the capacities indicated on September 8, 1999.
SIGNATURES TITLES
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/s/ Roger D. Bryant President, Chief Executive Officer and Director
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Roger D. Bryant
/s/ Debra L. Burgess Chief Operating Officer, Chief Financial Officer,
- --------------------------------------- Executive Vice President and Director
Debra L. Burgess (PRINCIPAL FINANCIAL AND ACCOUNTING OFFICER)
/s/ Nick DeMare Director
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Nick DeMare
/s/ Robert M. Fidler Director
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Robert M. Fidler
/s/ Thomas Rinehart Director
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Thomas Rinehart
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INDEX TO EXHIBITS
Exhibit Description
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4.1 Amended and Restated Stock Option Plan (filed as Exhibit
4.3 to the Registrant's Annual Report on Form 10-K for the
year ended October 31, 1998 and incorporated herein by
reference)
4.2 Form of Stock Option Agreement (filed as Exhibit 10.2 to
the Registrant's Registration Statement on Form 10 filed
on October 5, 1993 and incorporated herein by reference)
4.3 Amended Common Stock Purchase Warrant issued to Roger D.
Bryant dated July 1, 1997 and amended July 20, 1998 (filed
herewith)
4.4 Amended Common Stock Purchase Warrant issued to Debra L.
Burgess dated July 1, 1997 and amended July 20, 1998
(filed herewith)
4.5 Common Stock Purchase Warrant issued to Roger D. Bryant
dated July 1, 1998 (filed herewith)
4.6 Common Stock Purchase Warrant issued to Debra L. Burgess
dated July 1, 1998 (filed herewith)
4.7 Common Stock Purchase Warrant issued to Ivor J. Flannery
dated July 20, 1998 (filed herewith)
4.8 Common Stock Purchase Warrant issued to Scott R. Matthews
dated July 20, 1998 (filed herewith)
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 stock options and
the Compensation Contracts) (filed herewith)
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 (filed herewith)
23.3 Consent of Ernst & Young LLP (filed herewith)
8