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As filed with the Securities and Exchange Commission on September 26, 1997
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SMARTALK TELESERVICES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
California 95-4502740
(State or other jurisdiction of (I.R.S. Employer ID No.)
incorporation or organization)
</TABLE>
1640 South Sepulveda Boulevard, Suite 500
Los Angeles, California 90025
(310) 444-8800
(310) 444-8822 (fax)
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
SMARTALK TELESERVICES, INC.
1996 NONQUALIFIED STOCK OPTION PLAN
1996 STOCK INCENTIVE PLAN
(Full title of the plans)
David A. Hamburger
General Counsel, Vice President - Legal Affairs
SmarTalk TeleServices, Inc.
1640 South Sepulveda Boulevard, Suite 500
Los Angeles, California 90025
(310) 444-8800
(310) 444-8822 (fax)
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------
Calculation of Registration Fee
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<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered offering price per aggregate offering registration fee
share(1) price(1)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no 1,466,498 $1.77 - $15.97 $13,775,128.42 $4,173.86
par value per share
</TABLE>
- ---------------------------
(1) Pursuant to Rule 457(h), these prices are based on the exercise prices of
options granted for issuances of the Registrant's Common Stock pursuant to the
1996 Nonqualified Stock Option Plan and the 1996 Stock Incentive Plan
(collectively, the "Plans").
There are also registered hereunder such additional indeterminate
number of shares as may be issued as a result of the antidilution provisions of
the Plans.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") have been or will be
sent or given to participants in the plans listed on the cover of the
Registration Statement as specified in Rule 428(b)(1) promulgated by the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"). Such documents are not being filed
with the Commission but constitute (along with the documents incorporated by
reference into the Registration Statement pursuant to Item 3 of Part II hereof),
a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(1) Final Prospectus, dated October 23, 1996, filed by SmarTalk
TeleServices, Inc. (the "Company") with the Commission pursuant to Rule
424;
(2) The description of the Common Stock ("Common Stock") of the Company
contained in the Company's Registration Statement on Form S-1, filed
October 23, 1996;
(3) Annual Report on Form 10-K for the Year Ended December 31, 1996, filed
March 26, 1997;
(4) Quarterly Report on Form 10-Q for the Period Ended March 31, 1997,
filed May 14, 1997;
(5) Proxy Statement for the 1997 Annual Meeting, filed April 23, 1997;
(6) Current Report on Form 8-K, filed June 12, 1997;
(7) Current Report on Form 8-K, filed June 12, 1997;
(8) Amendment No. 1 to Current Report on Form 8-KA, filed August 7, 1997;
(9) Quarterly Report on Form 10-Q for the Period Ended June 30, 1997, filed
August 14, 1997;
(10) Amendment No. 1 to Current Report on Form 8-KA, filed August 15, 1997;
(11) Current Report on Form 8-K, filed August 15, 1997; and
(12) Current Report on Form 8-K, filed September 26, 1997.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), as amended, prior to termination of the offering of the Common Stock
pursuant to this Registration Statement shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 317 of the California Corporations Code (the "California Law")
generally permits indemnification of officers, directors, employees and agents
of a California corporation against expenses (including attorneys' fees)
incurred in the defense or settlement of a derivative action or third-party
action, provided there is a determination by a disinterested quorum of the
directors or independent legal counsel or a majority vote of a quorum of the
stockholders or the court in which the matter is or was pending that the person
seeking indemnification acted in good faith and in a manner reasonably believed
to be in or not opposed to the best interests of the corporation and, in the
case of a criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful. Such indemnification is expressly prohibited, however, in
respect of a derivative action in which such person is adjudged liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent approved by the court. The California
Law requires indemnification when the person being indemnified has successfully
defended the action on the merits or otherwise.
Expenses incurred by an officer or director in defending an action may
be paid in advance, under the California Law, if such director or officer
undertakes to repay such amounts if it is ultimately determined that he or she
is not entitled to indemnification. In addition, the California Law authorizes a
corporation's purchase of indemnity insurance for the benefit of its officers,
directors, employees and agents whether or not the corporation would have the
power to indemnify against the liability covered by the policy.
The California Law permits a California corporation to provide
indemnification in excess of that provided in the statutes. The California Law
does not require authorizing provisions in the articles of incorporation and
does not contain express prohibitions on indemnification in certain
circumstances; limitations on indemnification may be imposed by a court,
however, based on principles of public policy.
The Bylaws of the Company contain provisions requiring indemnification
of directors and officers to the maximum extent permitted by the California Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of SmarTalk TeleServices, Inc. (Incorporated
by reference to the Registration Statement on Form S-1, filed October 23, 1996)
4.2 Amended and Restated Bylaws of SmarTalk TeleServices, Inc. (Incorporated by reference to the
Registration Statement on Form S-1, filed October 23, 1996)
5.1 Opinion of Dewey Ballantine with respect to the legality of the securities being registered
</TABLE>
2
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<TABLE>
<S> <C>
23.1 Consent of Dewey Ballantine (contained in their opinion filed herewith as Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney of directors and certain officers of the Company (included in Signature Page)
</TABLE>
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
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;
(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 (a)(1)(i) and (a)(1)(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 Securities and Exchange Act of
1934, as amended (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.
(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 Securities 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
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 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
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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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 County of Los Angeles, State of California on the date
indicated below.
SMARTALK TELESERVICES, INC.
Date: September 26, 1997 By: /s/ DAVID A. HAMBURGER
--------------------------------
David A. Hamburger
General Counsel, Vice President -
Legal Affairs
Each of the undersigned hereby constitutes and appoints Robert H.
Lorsch, Erich L. Spangenberg and David A. Hamburger such person's true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, in such person's name and on such person's behalf, in any and
all capacities, to execute any and all amendments to this Registration Statement
(including any post-effective amendments) and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as
such person might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or such attorneys-in-fact's substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ ROBERT H. LORSCH Chairman of the Board and Chief September 26, 1997
- -------------------------------- Executive Officer (Principal
Robert H. Lorsch Executive Officer)
/s/ ERICH L. SPANGENBERG President, Chief Operating Officer September 26, 1997
- -------------------------------- and Director
Erich L. Spangenberg
/s/ GLEN ANDREW FOLCK Chief Financial Officer and Vice September 26, 1997
- -------------------------------- President Finance/Operations
Glen Andrew Folck (Principal Financial and
Accounting Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ AHMED O. ALFI
- -------------------------------- Director September 26, 1997
Ahmed O. Alfi
/s/ FRED F. FIELDING
- -------------------------------- Director September 26, 1997
Fred F. Fielding
/s/ JEFFREY I. SCHEINROCK
- -------------------------------- Director September 26, 1997
Jeffrey I. Scheinrock
/s/ ROBERT M. SMITH
- -------------------------------- Director September 26, 1997
Robert M. Smith
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 Amended and Restated Articles of Incorporation of SmarTalk TeleServices, Inc. (incorporated by
reference to the Registration Statement on Form S-1, filed October 23, 1996)
4.2 Amended and Restated Bylaws of SmarTalk TeleServices, Inc. (incorporated by reference to the
Registration Statement on Form S-1, filed October 23, 1996)
5.1 Opinion of Dewey Ballantine with respect to the legality of the securities being registered
23.1 Consent of Dewey Ballantine (contained in their opinion filed herewith as Exhibit 5.1)
23.2 Consents of Price Waterhouse LLP
23.3 Consent of Arthur Andersen LLP
23.4 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney of directors and certain officers of the Company (included in Signature Page)
</TABLE>
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EXHIBIT 5.1
September 26, 1997
SmarTalk TeleServices, Inc.
1640 S. Sepulveda Blvd., Ste. 500
Los Angeles, California 90025
Gentlemen:
We have acted as counsel to SmarTalk TeleServices, Inc., a
California corporation (the "Company"), in connection with the preparation and
filing by the Company of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
for the registration of 1,466,498 shares of Common Stock, no par value (the
"Shares"), of the Company which may be issued upon exercise of stock options
pursuant to the 1996 Nonqualified Stock Option Plan and the 1996 Stock Incentive
Plan (collectively, the "Plans") of the Company.
We have examined and are familiar with originals or copies,
certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and officers of the Company
and such other instruments as we have deemed necessary or appropriate as a basis
for the opinions expressed below.
Based on the foregoing, we are of the opinion that:
1. The issuance of the Shares upon exercise of options
granted under the Plans has been lawfully and duly authorized; and
2. When the Shares have been issued and delivered in
accordance with the terms of the Plans, the Shares will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. In giving such consent, we do not thereby admit
that we come within the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
Dewey Ballantine
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 23, 1997 appearing in Part
II, Item 8. "Financial Statements - Report of Independent Accountants" of
SmartTalk TeleServices, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Century City, California
September 22, 1997
<PAGE> 2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of SmartTalk TeleServices, Inc. of our report dated July
18, 1996 relating to the financial statements of GTI Telecom, Inc., which
appears in the Current Report on Form 8-K/A of SmartTalk TeleServices, Inc.
dated August 15, 1997.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Century City, California
September 22, 1997
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EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 of our report dated April 4, 1997 (except with
respect to the matter discussed in Notes 1, 3(a), 4(d), 5 and 9, as to which
the date is May 24, 1997) on the financial statements of SmarTel
Communications, Inc. and subsidiaries (the Company) as of December 31, 1995 and
1996 and for the three years in the period ended December 31, 1996. It should
be noted that we have not audited any financial statements of the Company
subsequent to December 31, 1996 or performed any audit procedures subsequent to
the date of our report.
/s/ Arthur Andersen LLP
Boston, Massachusetts
September 22, 1997
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EXHIBIT 23.4
INDEPENDENT ACCOUNTANTS' CONSENT
To the Board of Directors of
GTI Telecom, Inc.:
We consent to the use of our report dated April 4, 1997, except as to note 15
which is as of May 16, 1997, with respect to the balance sheet of GTI Telecom,
Inc. as of December 31, 1996, and the related statements of operations,
stockholders' deficit and cash flows for the year ended December 31, 1996,
incorporated herein by reference.
Our report dated April 4, 1997, contains an explanatory paragraph that states
that GTI Telecom, Inc. has suffered recurring losses from operations and has
working capital and stockholder's deficits which raise substantial doubt about
its ability to continue as a going concern. The financial statements do not
include any adjustments that might result from the outcome of that uncertainty.
/s/ KPMG PEAT MARWICK LLP
Orlando, Florida
September 24, 1997
