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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SMARTALK TELESERVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA(1) 4899 95-4502740
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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5500 FRANTZ ROAD, SUITE 125
DUBLIN, OHIO 43017
(614) 764-2933
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
THADDEUS BEREDAY
5500 FRANTZ ROAD, SUITE 125
DUBLIN, OHIO 43017
(614) 799-4538
(NAME AND ADDRESS INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPY TO:
ROBERT M. SMITH
DEWEY BALLANTINE LLP
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071
(213) 626-3399
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITY AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(2) PRICE(2) REGISTRATION FEES
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Common Stock, no par value per 343,336 100% $6,716,511 $1,982
share...........................
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(1) A proposal to effect the reincorporation of SmarTalk TeleServices, Inc. from
California to Delaware was approved by the shareholders of the Registrant on
December 31, 1997. Accordingly, subject to receipt of all requisite
regulatory approval, the Registrant's state of incorporation will change
from California to Delaware and Registrant will be a Delaware corporation.
(2) Based upon the average of the high and low sale price of the Common Stock as
reported by the Nasdaq Stock Market's National Market on July 24, 1998,
estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
SMARTALK TELESERVICES, INC.
343,336 SHARES OF COMMON STOCK
The shares offered hereby (the "Registrable Shares") consist of 343,336
shares of common stock, no par value per share (the "Common Stock"), of SmarTalk
TeleServices, Inc. ("SmarTalk" or the "Company"), 343,336 of which are owned by
the selling shareholder listed herein under "Selling Security Holder" (the
"Selling Shareholder") and all of which the Selling Shareholder acquired
pursuant to the Master Acquisition Agreement, dated as of July 1, 1998, by and
between the Company and the Selling Shareholder. SmarTalk shall pay its own
legal and accounting fees, all registration and filing fees attributable to the
registration of the Registrable Shares, all legal fees and filing fees relating
to state securities or "blue sky" filings, the filing fee payable to the Nasdaq
Stock Market's National Market ("Nasdaq") and all printing fees incurred in
connection herewith. SmarTalk will not receive any of the proceeds from the sale
of the Registrable Shares by the Selling Shareholder.
The Selling Shareholder has not informed SmarTalk of any specific plans for
the distribution of the Registrable Shares covered by this Prospectus, but it is
anticipated that the Registrable Shares will be sold from time to time primarily
in transactions (which may include block transactions) on Nasdaq at the market
price then prevailing, although sales may also be made in negotiated
transactions or otherwise. The Selling Shareholder and the brokers and dealers
through whom sale of the Registrable Shares may be made may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"), and their commissions or discounts and other compensation may
be regarded as underwriters' compensation. See "Plan of Distribution."
On July 24, 1998, the last reported sale price of the Company's Common
Stock on Nasdaq (where it trades under the symbol "SMTK") was 19 per share.
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SEE "RISK FACTORS" BEGINNING ON PAGE 4 OF THE
PROSPECTUS FOR CERTAIN INFORMATION RELATING
TO THE SALE OF THE REGISTRABLE SHARES.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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July 27, 1998
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AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "SEC" or the "Commission"). Reports,
proxy statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's Regional
Offices at Seven World Trade Center, 13th Floor, New York, New York 10048 and
CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material can be obtained by mail from the Public Reference
Section of the Commission at 450 West Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The reports, proxy statements and other information
may also be obtained from the Web site that the Commission maintains at
http://www.sec.gov. The Common Stock is listed on Nasdaq and such materials may
be inspected at the offices of Nasdaq, National Association of Securities
Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement on Form
S-3 (herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act with respect to the
securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, certain parts of which were
omitted in accordance with the rules and regulations of the Commission. For
further information, reference is hereby made to the Registration Statement. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission
are not necessarily complete, and in each instance reference is made to the copy
of such document so filed. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
1. The description of the Company's Common Stock contained in the
Company's Report on Form 8-A, filed October 11, 1996;
2. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
3. The financial statements contained in the Company's Current Reports
on Form 8-K dated November 24, 1997 and December 22, 1997 (as amended on
Form 8-K/A); and
4. The Company's Proxy Statement for the 1998 Annual Meeting of the
SmarTalk shareholders.
All other documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and 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 this Prospectus and
to be a part hereof from the date of filing such documents.
Any statement contained in this Prospectus 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 Prospectus to the extent that a statement
contained in this Prospectus or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner of Registrable Shares, to whom a copy of this Prospectus is
delivered, upon the written or oral request of such person, a copy of any and
all information that has been incorporated by reference in the Prospectus not
including exhibits to the information that is incorporated by reference (unless
such exhibits are specifically incorporated by
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reference into such documents). Requests should be directed to Thaddeus Bereday,
the Company's General Counsel, at the Company's principal executive offices
located at 5500 Frantz Road, Suite 125, Dublin, Ohio 43017. The telephone number
is (614) 764-2933.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained herein regarding matters that are not
historical facts are forward-looking statements (within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act). Because such
forward-looking statements include risks and uncertainties, actual results may
differ materially from those expressed or implied by such forward-looking
statements. Factors that could cause actual results to differ materially
include, but are not limited to, those discussed under "RISK FACTORS."
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RISK FACTORS
Prospective investors should carefully consider the risk factors set forth
below, as well as the other information contained in this Prospectus, in
evaluating an investment in the securities offered hereby. This Prospectus
contains certain forward-looking statements that involve risks and
uncertainties. The Company's actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including those set forth below and elsewhere in this Prospectus.
ACQUISITION STRATEGY
The Company regularly pursues opportunities to expand through acquisitions.
The Company plans to continue to seek acquisitions that complement its services,
broaden its consumer base and improve its operating efficiencies. Acquisitions
may result in potentially dilutive issuances of equity securities, the
incurrence of additional debt and the amortization of expenses related to
goodwill and other intangible assets, all of which could have a material adverse
effect on the Company. Acquisitions also involve numerous additional risks,
including difficulties in assimilation of the operations, services, products and
personnel of acquired companies, which could result in charges to earnings or
otherwise adversely affect the Company's operating results. There can be no
assurance that acquisition opportunities will continue to be available, that the
Company will have access to the capital required to finance potential
acquisitions, that the Company will continue to acquire businesses or that any
acquired businesses will be profitable.
ABILITY TO INTEGRATE THE OPERATIONS OF SMARTALK, WORLDWIDE DIRECT, INC.,
AMERICAN EXPRESS TELECOM, INC., CONQUEST TELECOMMUNICATION SERVICES CORP., THE
SELECTED ASSETS OF THE RETAIL PREPAID PHONE CARD BUSINESS OF FRONTIER
CORPORATION, GTI TELECOM, INC. AND SMARTEL COMMUNICATIONS, INC.
SmarTalk recently acquired Worldwide Direct, Inc., American Express
Telecom, Inc., ConQuest Telecommunication Services Corp., ("ConQuest"), the
selected assets of the retail prepaid phone card business of Frontier
Corporation ("Frontier"), GTI Telecom, Inc. and SmarTel Communications, Inc.
Because of the inherent uncertainties associated with integrating the assets,
operations and personnel of several companies, there can be no assurance that
operating efficiencies will be realized as a result of the mergers and
acquisitions or that the combination of such businesses will be successful.
LIMITED OPERATING HISTORY; NET LOSSES; ABILITY TO UTILIZE NET OPERATING LOSS
CARRYFORWARDS;
ACCUMULATED DEFICIT
The Company was formed in October 1994 and has had only a limited operating
history upon which investors may base an evaluation of its performance. As a
result of operating expenses and development expenditures, the Company has
incurred significant operating and net losses to date. Net losses for the years
ended December 31, 1995, 1996 and 1997 were approximately $1.3 million, $3.1
million and $61.9 million, respectively. In addition, the ability of the Company
or the Company's subsidiaries, as the case may be, to utilize their net
operating loss carryforwards to offset future taxable income may be subject to
certain limitations contained in the Internal Revenue Code of 1986, as amended
(the "Code"), which may have a material adverse effect on the Company. As of
December 31, 1997, the Company had an accumulated deficit of approximately $68.9
million.
COMPETITION
The telecommunications industry is highly competitive, rapidly evolving and
subject to constant technological change. Currently, there are numerous
companies selling prepaid calling cards, and the Company expects competition to
increase in the future. Other providers currently offer one or more of each of
the services offered by the Company. As a service provider in the long distance
telecommunications industry, the Company's key competitors in the long distance
telecommunications industry are MCI Communications Corporation ("MCI"), AT&T
Corp. ("AT&T") and Sprint Corporation ("Sprint"), all of which are substantially
larger and have: (i) greater financial, technical, engineering, personnel and
marketing resources; (ii) longer operating histories; (iii) greater name
recognition; and (iv) larger consumer bases than the Company. These advantages
afford the Company's competitors pricing flexibility. Telecommunications
services companies may compete for consumers based on price, with the dominant
providers conducting
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extensive advertising campaigns in order to capture market share. Competitors
with greater financial resources may also be able to provide more attractive
incentive packages to retailers in order to encourage them to carry products
that compete with the Company's services. In addition, competitors with greater
resources than the Company may be better situated to negotiate favorable
contracts with retailers. The Company believes that existing competitors are
likely to continue to expand their service offerings to appeal to retailers and
their consumers. Moreover, because there are few, if any, substantial barriers
to entry, the Company expects that new competitors are likely to enter the
telecommunications market and attempt to market telecommunications services
similar to the Company's services which would result in greater competition.
The Company's ability to compete effectively in the telecommunications
services industry will depend upon the Company's continued ability to provide
high quality services at prices generally competitive with, or lower than, those
charged by its competitors. Certain of the Company's competitors dominate the
telecommunications industry and have the financial resources to enable them to
withstand substantial price competition, which is expected to increase
significantly, and there can be no assurance that the Company will be able to
compete successfully in the future. Moreover, there can be no assurance that
certain of the Company's competitors will not be better situated to negotiate
contracts with suppliers of telecommunications services which are more favorable
than contracts negotiated by the Company. In addition, there can be no assurance
that competition from existing or new competitors or a decrease in the rates
charged for telecommunications services by the major long distance carriers or
other competitors would not have a material adverse effect on the Company.
RAPID TECHNOLOGICAL CHANGE, DEPENDENCE ON NEW SERVICES
The telecommunications services industry is characterized by rapid
technological change, new product introduction and evolving industry standards.
The Company's success will depend, in significant part, on its ability to make
timely and cost-effective enhancements and additions to its technology and
introduce new services that meet consumer demands. The Company expects new
products and services, and enhancements to existing products and services, to be
developed and introduced in order to compete with the Company's services. The
Company currently is in the process of completing development of technology that
will permit it to market and deliver prepaid cellular phone service. The
proliferation of new telecommunications technology, including personal
communications services and voice communication over the Internet, may reduce
demand for long distance services, including prepaid calling cards. There can be
no assurance that the Company will be successful in developing and marketing new
services or enhancements to services that respond to these or other
technological changes or evolving industry standards. In addition, there can be
no assurance that the Company will not experience difficulties that could delay
or prevent the successful development, introduction and marketing of its
existing services or that its new services or enhancements thereto will
adequately meet the requirements of the marketplace and achieve market
acceptance. Delay in the introduction of new services or enhancements, the
inability of the Company to develop such new services or enhancements or the
failure of such services or enhancements to achieve market acceptance could have
a material adverse effect on the Company.
VOLATILITY OF STOCK PRICE
The market price of the Common Stock has been highly volatile and may
continue to be subject to wide fluctuations in response to quarterly variations
in operating results, changes in financial estimates by securities analysts, or
other events or factors. In addition, the U.S. stock market has experienced
significant price and volume fluctuations that have particularly affected the
market prices of equity securities of many telecommunications companies and that
often have been unrelated to the operating performance of such companies. These
broad market fluctuations may adversely affect the market price of the Common
Stock.
DIFFICULTIES OF MANAGING RAPID GROWTH
Although the Company has experienced substantial growth in revenue in the
last year and intends to continue to grow rapidly, there can be no assurance
that the growth experienced by the Company will continue or that the Company
will be able to achieve the growth contemplated by its business strategy. The
Company's ability to continue to grow may be affected by various factors, many
of which are not within the Company's
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control, including competition and federal and state regulation of the
telecommunications industry. This growth has placed, and is expected to continue
to place, significant demands on all aspects of the Company's business,
including its administrative, technical and financial personnel and systems. The
Company's future operating results will substantially depend on the ability of
its officers and key employees to manage such anticipated growth, to attract and
retain additional highly qualified management, technical and financial personnel
and to implement and/or improve its technical, administrative, financial control
and reporting systems. The Company's financial controls and reporting systems
will require enhancement and further investment in the future in order to
accommodate the Company's anticipated growth. There can be no assurance that the
Company will not encounter difficulties in expanding its financial controls and
reporting systems in order to meet the Company's future needs. If the Company is
unable to respond to and manage changing business conditions, then the quality
of services, its ability to retain key personnel and its results of operations
could be materially adversely affected. Difficulties in managing continued
growth could have a material adverse effect on the Company.
DEPENDENCE ON MAJOR RETAILERS
The Company's business is dependent upon its relationships with leading
regional and national retailers. The Company's arrangements with retailers are
often pursuant to short-term arrangements. If the Company is unsuccessful in
providing competitive pricing, meeting the requirements of its retailers,
developing new products that are attractive to such retailers or complying with
the terms of its arrangements with such retailers, such retailers may fail to
market aggressively the Company's services or may terminate their relationships
with the Company, either of which could have a material adverse effect on the
Company. Substantially all of the Company's revenue to date has been derived
from the sale of the SmarTalk Card to retailers. Certain of those retailers
have, from time to time, accounted for a significant percentage of the Company's
revenue. The inability of any such retailer to pay the Company for cards shipped
or the loss of any such retailer could have a material adverse effect on the
Company.
DEPENDENCE ON KEY MANAGEMENT AND PERSONNEL
The Company's success is largely dependent upon its executive officers, the
loss of one or more of whom could have a material adverse effect on the Company.
The Company believes that its continued success will depend to a significant
extent upon the efforts and abilities of Robert H. Lorsch, Chairman of the Board
of Directors (the "Board"), Erich L. Spangenberg, Chief Executive Officer and
Vice Chairman of the Board, Jeff Lindauer, President and Chief Operating
Officer, and Richard M. Teich, Executive Vice President. Although the Company
believes its new management structure will solidify the Company's
infrastructure, there can be no assurance that the anticipated benefits will be
realized or that the new management structure will be successful. Additionally,
although the Company believes that it would be able to locate suitable
replacements for these executives if their services were lost, there can be no
assurance it would be able to do so. Accordingly, the loss of services of any of
these individuals could have a material adverse effect on the Company. The
Company maintains, and is the sole beneficiary of, "key man" life insurance on
Messrs. Lorsch and Teich in the amounts of $3.0 million and $1.0 million,
respectively.
DEPENDENCE UPON TELECOMMUNICATIONS PROVIDERS; NO GUARANTEED SUPPLY
The Company does not own a transmission network and, accordingly, depends
primarily on Frontier, MCI, WorldCom, Inc. and, to a lesser extent, other
carriers for transmission of its long distance calls. Further, the Company is
dependent upon local exchange carriers for call origination and termination. The
Company's ability to maintain and expand its business depends, in part, on its
ability to continue to obtain telecommunications services on favorable terms
from long distance carriers and other such suppliers, as well as the cooperation
of both interexchange and local exchange carriers in originating and terminating
service for its consumers in a timely manner. The Company has not experienced
significant losses in the past because of interruptions of service at any of its
carriers, but no assurance can be given in this regard with respect to the
future. In addition, no assurance can be given that the Company will be able to
obtain long distance services in the future at favorable prices, and a material
increase in the price at which the Company obtains long distance service could
have a material adverse effect on the Company. See "-- Competition."
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DEPENDENCE ON FACILITIES AND PLATFORMS; DAMAGE TO FACILITIES AND PLATFORMS;
FAILURE AND DOWNTIME
The Company owns and operates the Ohio Platform, a call processing platform
site located in Columbus, Ohio, and the VoiceChoice Platform, a call processing
platform site located in San Francisco, California. Additionally, the Company
utilizes two additional call processing platforms owned and operated by West
Teleservices. The Company's network service operations are dependent upon its
ability to protect the equipment and data at such facilities against damage that
may be caused by fire, power loss, technical failures, unauthorized intrusion,
natural disasters, sabotage and other similar events. Although the Company has
taken precautions to protect itself and its consumers from events that could
interrupt delivery of services, there can be no assurance that a fire, act of
sabotage, technical failure, human error, natural disaster or a similar event
would not cause the failure of a significant technical component, thereby
resulting in an outage. Such an outage could have a material adverse effect on
the Company. The Company believes that technical failures have not resulted in
any material downtime of the Company's platforms since the Company's inception.
Although the Company maintains business interruption insurance providing
for aggregate coverage of approximately $1.0 million per occurrence, there can
be no assurance that the Company will be able to maintain its insurance, that
such insurance would continue to be available at reasonable prices, that such
insurance would cover all such losses or that such insurance would be sufficient
to compensate the Company for losses it experiences due to the Company's
inability to provide services to its consumers.
SEASONALITY; FACTORS AFFECTING OPERATING RESULTS; POTENTIAL FLUCTUATIONS IN
PERIOD-TO-PERIOD RESULTS
The Company's sales have been, and the Company expects that its sales will
continue to be, somewhat seasonal, due to holiday purchases of the SmarTalk
Card. In addition, the Company's operating results have varied significantly in
the past and may vary significantly in the future. Traditional operator-assisted
long distance services produce peak revenues during the summer months,
coincident with domestic travel and vacation patterns. Though less severe than
call center services, prepaid calling cards are also affected by seasonal demand
fluctuations with demand peaking in the spring and summer months.
Factors that may cause the Company's operating results to vary include: (i)
changes in operating expenses; (ii) the timing of the introduction of services;
(iii) market acceptance of new and enhanced versions of services; (iv) potential
acquisitions; (v) changes in legislation and regulation which affect the
competitive environment for services; (vi) general economic factors; and (vii)
the ability to recognize revenue on the unused portion of expired SmarTalk
Cards. Moreover, for many of the Company's retailers, services represent a new
merchandising category, with the attendant concerns regarding shelf space
positioning, sales force education and effective marketing and, with respect to
arrangements with certain retailers requiring customized services, there may be
significant lead-time to provide such services following receipt of customer
orders. As a result of these factors, the Company believes that period-to-period
comparisons of its results of operations are not necessarily meaningful and
should not be relied upon as an indication of future performance.
RISK OF LOSS FROM RETURNED TRANSACTIONS; FRAUD; BAD DEBT; THEFT OF SERVICES
The Company utilizes national credit card clearance systems for electronic
credit card settlement. The Company generally bears the same credit risks
normally assumed by other users of these systems arising from returned
transactions caused by closed accounts, frozen accounts, unauthorized use,
disputes, theft or fraud. The Company's relationships with providers of merchant
card services such as VISA and MasterCard could be adversely affected by
excessive uncollectibles or chargebacks, which are generally higher in the
telephone industry than in other industries, particularly with respect to
recharges because the transaction typically is not on a face-to-face basis in
which a cardholder signature is captured. Termination of the Company's ability
to offer recharge through merchant card services would have a material adverse
effect on the Company. In order to minimize its financial exposure, the Company
limits the amount that consumers can recharge within specified timeframes and
generally charges a higher rate for recharge services than for the initial
purchase. From time to time, persons have obtained services without rendering
payment to the Company by unlawfully utilizing the Company's access numbers and
personal identification numbers ("PINs"). Although to date the Company has not
experienced material losses due to such unauthorized use of access numbers and
customized PINs, no assurance can be given
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that future losses due to unauthorized use will not be material. The Company
attempts to manage these credit, theft and fraud risks through its internal
controls, monitoring and blocking systems. The Company also maintains reserves
which it deems adequate for such risks. Past experience in estimating and
establishing reserves and the Company's historical losses are not necessarily
accurate indications of the Company's future losses or the adequacy of the
reserves established by the Company in the future. Although the Company believes
that its risk management and bad debt reserve practices are adequate, there can
be no assurance that the Company's risk management practices or reserves will be
sufficient to protect the Company from unauthorized or returned transactions or
thefts of services which could have a material adverse effect on the Company.
SHARES ELIGIBLE FOR FUTURE SALE; REGISTRATION RIGHTS
As of July 23, 1998, the Company had 27,571,873 shares of Common Stock
outstanding. Of these shares, 18,441,107 shares of Common Stock are freely
tradable without restriction or further registration under the Securities Act.
The remaining 9,130,766 shares of Common Stock outstanding are "restricted
securities" as that term is defined in Rule 144 under the Securities Act ("Rule
144").
If the Company proposes to register any of its securities under the
Securities Act of 1933, as amended (the "Securities Act"), the Company generally
must notify SmarTalk Partners, LLC ("SmarTalk Partners"), the holder of
1,595,000 shares of Common Stock (the "Partners Registrable Shares") of the
Company's intent to register such Common Stock and allow SmarTalk Partners an
opportunity to include the Partners Registrable Shares in the Company's
registration. SmarTalk Partners also has the right to require the Company to
prepare and file a registration statement under the Securities Act pertaining to
the Partners Registrable Shares.
On September 17, 1997, the Company sold $150 million aggregate principal
amount of 5 3/4% convertible subordinated notes due September 15, 2004 (the
"5 3/4% Notes") in an offering pursuant to Rule 144A under the Securities Act
(the "5 3/4% Notes Offering"). In connection with the 5 3/4% Notes Offering, the
Company has filed and the Commission declared effective a shelf registration
statement on Form S-3, covering a total of 5,714,286 shares of Common Stock
issuable upon conversion of the 5 3/4% Notes. The Company is obligated to use
all reasonable efforts to keep the registration statement effective until the
shelf registration statement is no longer required for resales of the 5 3/4%
Notes or the Common Stock issued upon conversion thereof. If the shelf
registration statement ceases to be effective or usable, the Company will accrue
liquidated damages which could have a material adverse effect on the Company.
POSSIBLE INABILITY TO RECOGNIZE A PORTION OF DEFERRED REVENUE
The sale of long distance domestic and outbound international telephone
service through prepaid calling cards may be subject to "escheat" laws in
various states. These laws generally provide that payments or deposits received
in advance or in anticipation of the provision of utility (including telephone)
services that remain unclaimed for a specific period of time after the
termination of such services are deemed "abandoned property" and must be
submitted to the state. Although the Company is not aware of any case in which
such laws have been applied to the sale of prepaid calling cards, and does not
believe that such laws are applicable, in the event that such laws are deemed
applicable, the Company may be unable to recognize the portion of its deferred
revenue remaining upon the expiration of the cards with unused calling time. In
such event, the Company may be required to deliver such amounts to certain
states in accordance with these laws, which could have a material adverse effect
on the Company.
GOVERNMENT REGULATION
The Company is currently subject to federal and state government regulation
of its long distance telephone services. The Company is regulated at the federal
level by the Federal Communications Commission (the "FCC") and is currently
required to maintain both domestic and international tariffs for its services
containing the currently effective rates, terms and conditions of service. The
FCC ordered elimination of the tariffing requirement for domestic interstate
non-dominant carriers. The FCC's order is pending review and approval by the
Court of Appeals for the D.C. Circuit following long-standing appeals by the
FCC's past mandatory detariffing policies. In addition, the Company is required
to maintain a certificate of authority, issued by the FCC, to provide
international telecommunications services. The intrastate long distance
telecommunications operations of the
8
<PAGE> 10
Company are also subject to various state laws and regulations, including prior
certification, notification or registration requirements. The Company generally
must obtain and maintain certificates of public convenience and necessity from
regulatory authorities in most states in which it offers service. In most of
these jurisdictions, the Company must file and obtain prior regulatory approval
of tariffs for intrastate services. In addition, the Company must update or
amend the tariffs and, in some cases, the certificates of public convenience and
necessity when rates are adjusted or new products are added to the long distance
services offered by the Company. The FCC and numerous state agencies also impose
prior approval requirements on transfers of control, including corporate
reorganizations and assignments of certain regulatory authorizations.
If the federal and state regulations requiring the local exchange carriers
to provide equal access for the origination and termination of calls by long
distance subscribers (such as the Company's consumers) change or if the
regulations governing the fees to be charged for such access services change,
particularly if such regulations are changed to allow variable pricing of such
access fees based upon volume, such changes could have a material adverse effect
on the Company. In early 1997, the FCC instituted significant changes to the
current incumbent local exchange carrier access charge structure. These changes
were meant, in part, to bring access charges closer to their actual costs. While
there has been a general trend toward access charge reductions, new primary
interexchange charges (PICCs) were authorized by the FCC to be imposed on
interexchange carriers serving presubscribed customers. PICCs are a flat-rate,
per presubscribed line, per month access charge imposed on all facilities based
carriers (although they may be passed on to resellers such as the Company).
Facilities based interexchange carriers were assessed interstate PICCs effective
January 1, 1998. Intrastate PICCs have also been adopted in the five-state
Ameritech region (Michigan, Wisconsin, Illinois, Indiana, and Ohio). PICCs will
affect the Company only to the extent that it offers presubscribed services. At
the same time, the Company may pursue underlying carriers for pass throughs of
any access charge reductions they may realize from incumbent local exchange
carriers.
Through the ConQuest acquisition, the Company is subject to additional
federal, state and international regulation of its long distance, operator
services and prepaid calling card services. The Company is in compliance with
the requirements of the TelePhone Operator Consumer Services Improvement Act of
1990 ("TOCSIA") and the FCC's implementing regulations regarding unblocking,
branding and posting for operator services. The Company maintains informational
tariffs for its operator services and maintains on file tariffs for its long
distance and prepaid calling card services. The Company is licensed in the
states in which it operates as a long-distance operator-services provider, and
is not aware of any instance in which there has been a substantial violation of
federal or state telecommunications regulation in connection with the Company's
services. While the Company believes that it is in compliance with the
applicable federal, state and international regulations governing
telecommunications services, there can be no assurance that the FCC or the
regulatory authorities in one or more states or foreign countries will not raise
material issues with regard to the Company's compliance with applicable
regulations, will not institute new regulation or modify existing regulation, or
that federal, state and international regulatory activities will not otherwise
have a material adverse effect on the Company.
The Telecommunications Act of 1996 mandated the establishment of Universal
Service for the promotion of nationwide access to telecommunications services in
rural, insular and high cost areas that are reasonably comparable in price and
type to those found in urban areas and the promotion of access to advanced
services for schools, libraries and certain health care providers.
Telecommunications providers of interstate services, including payphone
aggregators and private network operators that offer service to others for a fee
on a non-common carrier basis, must contribute toward the funding of Universal
Service. Certain government and public entities are exempt, as are entities
whose contribution would be less than $100.00 per year. Although the Company's
competition will be similarly situated, the Universal Service Fund annual
assessment may have a material adverse effect on the long term financial
condition of the Company.
The Telecommunications Act of 1996 (Section 276) further mandated that the
FCC promulgate rules to establish a per call compensation plan in order to
ensure that all payphone providers are fairly compensated for each completed
intrastate and interstate payphone initiated call, including calls on which
payphone providers had not heretofore received compensation. Such calls included
those placed to toll free numbers (800/888) such as operator-assisted and
prepaid calling card calls, and calls placed through network access codes. In
9
<PAGE> 11
September 1996, the FCC promulgated rules in order to implement Section 276 of
the Telecommunications Act of 1996 which established a three-phase compensation
plan for payphone providers. Under the first phase, interexchange carriers with
annual toll revenues of more than $100 million were to pay a total of $45.85 per
payphone per month for all toll free access code calls for the first year,
commensurate with their portion of total interexchange revenues. All
switch-based and facilities-based interexchange carriers were to pay $0.35 per
call to each payphone provider during the second year (although payments could
subsequently be recovered from resellers by the carriers), after which per call
compensation rates were to be left to individual market-driven rates negotiated
between payphone providers and interexchange carriers. On July 1, 1997, the D.C.
Circuit Court of Appeals vacated significant portions of the FCC's rules
including the $0.35 per call rate which was found to be arbitrary and
capricious, and remanded the matter to the FCC for reconsideration. On remand,
the FCC in September 1997, established a two-year "default" compensation rate of
$0.284 per payphone-originated toll free or access code call. At the end of the
two-year interim period, the per call payphone compensation rate will be the
deregulated market-based local coin rate less $0.066. This amount is payable by
all "switch-based" interexchange carriers (but again may be passed through to
nonfacilities-based resellers). The revised FCC rules became effective on
October 7, 1997, but continue to be subject to regulatory and legal challenges.
The Company is unable to predict whether this regulation or other potential
changes in the regulatory environment could have a material adverse effect on
the Company.
CONTROL OF THE COMPANY
The directors, executive officers and their respective affiliates
beneficially own 4,760,327 shares (approximately 17.265%) of the outstanding
Common Stock, which includes 1,553,750 shares issuable upon the exercise of
stock options exercisable within 60 days of the date of this Prospectus. Mr.
Lorsch beneficially owns 3,250,393 shares (approximately 11.789%) of the
outstanding Common Stock. As a result, these shareholders in general, and Mr.
Lorsch in particular, are able to exercise significant influence over all
matters requiring shareholder approval, including the election of directors and
approval of significant corporate transactions. Such concentration of ownership
may also have the effect of delaying or preventing a change in control of the
Company.
ANTI-TAKEOVER CONSIDERATIONS
The Company's Board has authority to issue up to 10,000,000 shares of
preferred stock and to fix the rights, preferences, privileges and restrictions,
including voting rights, of the preferred stock without further vote or action
by the Company's shareholders. The rights of the holders of Common Stock will be
subject to, and may be adversely affected by, the rights of the holders of any
preferred stock that may be issued in the future. The Company's Amended and
Restated Articles of Incorporation (the "Articles") and Amended and Restated
Bylaws (the "Bylaws") require that any action required or permitted to be taken
by shareholders of the Company must be effected at a duly called annual or
special meeting of shareholders of the Company and may not be effected by
written consent. In addition, the Company's charter documents eliminate
cumulative voting, which may make it more difficult for a third party to gain
control of the Company's Board. Moreover, the Company's Board has the authority,
without action by, or consent of, the shareholders, to fix the rights and
preferences of and issue shares of preferred stock. These and other charter
provisions may deter a third party who would propose to acquire the Company or
to engage in a similar transaction affecting control of the Company in which the
shareholders might receive a premium for their shares over the then current
market value. Further, the Company may consider additional anti-takeover
defenses, including the implementation of a shareholder rights plan.
FORWARD-LOOKING STATEMENTS
This Prospectus contains certain forward-looking statements within the
meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act
concerning the Company's future operations, economic performances and financial
condition, including such things as business strategy and measures to implement
strategy, competitive strengths, goals, expansion and growth of the Company's
business and operations and references to future success. These statements are
based on certain assumptions and analyses made by the
10
<PAGE> 12
Company in light of its experience and its perception of historical trends,
current conditions and expected future developments as well as other factors it
believes are appropriate in the circumstances. However, whether actual results
and developments will conform with the Company's expectations and predictions is
subject to a number of risks and uncertainties, in addition to the risk factors
discussed above, including a global economic slowdown in the telecommunications
industry, unpredictable difficulties or delays in the development of new product
programs, difficulties and unanticipated expense of assimilating newly-acquired
businesses, technological shifts away from the Company's technologies and core
competencies, unforeseen interruptions to the Company's business with its
largest customers and distributors resulting from, but not limited to, strikes,
financial instabilities, unexpected government policies and regulations
affecting the Company or its significant customers, the effects of extreme
changes in monetary and fiscal policies in the U.S. and abroad, including
extreme currency fluctuations and unforeseen inflationary pressures, drastic and
unforeseen price pressures on the Company's services or significant cost
increases that cannot be recovered through price increases or productivity
improvements, significant changes in interest rates or in the availability of
financing for the Company or certain of its customers, rapid escalation of the
cost of regulatory compliance and litigation, unforeseen intergovernmental
conflicts or actions, including but not limited to armed conflict and trade
wars, any difficulties in obtaining or retaining the management or other human
resource competencies that the Company needs to achieve its business objectives,
and other factors, many of which are beyond the control of the Company.
Consequently, all of the forward-looking statements made in this Prospectus are
qualified by these cautionary statements, and there can be no assurance that the
actual results or developments anticipated by the Company will be realized or
that they will have the expected consequences to or effects on the Company and
its subsidiaries or their business or operations.
USE OF PROCEEDS
SmarTalk will not receive any proceeds from the sale of the Registrable
Shares by the Selling Shareholder.
SELLING SECURITY HOLDERS
The following table sets forth the name of each Selling Shareholder and
relationship, if any, with the Company and: (i) the number of shares owned by
each Selling Shareholder as of July 23, 1998; (ii) the number of shares being
offered for sale by each Selling Shareholder under this Prospectus; (iii) the
number of shares owned by each Selling Shareholder after the offering; and (iv)
the percentage of the Common Stock of the Company owned by each Selling
Shareholder after the offering.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF NUMBER OF PERCENTAGE OF
SHARES OWNED SHARES BEING SHARES OWNED SHARES OWNED
BEFORE THE OFFERED AFTER THE AFTER THE
NAME OF SELLING SECURITYHOLDER OFFERING FOR SALE OFFERING OFFERING
------------------------------ ------------ ------------ ------------ -------------
<S> <C> <C> <C> <C>
DTR Associates Limited Partnership... 343,336 343,336 * *
</TABLE>
- ---------------
* Because the Selling Shareholder may, pursuant to this Prospectus, offer all or
some portion of the Common Stock presently held, no estimate can be given as
to the amount of the Common Stock that will be held by the Selling Shareholder
upon termination of any such sales. In addition, the Selling Shareholder
identified above may have sold, transferred or otherwise disposed of all or a
portion of the Common Stock since the date on which the information regarding
the Common Stock was provided in transactions exempt from the registration
requirements of the Securities Act. See "Plan of Distribution."
Only the Selling Shareholder identified above who beneficially owns the
Common Stock set forth opposite such Selling Shareholder's name in the foregoing
table on the effective date of the Registration Statement may sell such Common
Stock pursuant to this Prospectus.
11
<PAGE> 13
PLAN OF DISTRIBUTION
The Selling Shareholder may from time to time sell all or a portion of the
Registrable Shares in transactions on Nasdaq, in the over-the-counter market, in
negotiated transactions, or a combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. The Registrable Shares may be sold
directly or through underwriters or broker-dealers. If the Registrable Shares
are sold through underwriters or broker-dealers, the Selling Shareholder may pay
underwriting discounts or brokerage commissions and charges. The methods by
which the Registrable Shares may be sold include: (i) a block trade in which the
broker or dealer so involved will attempt to sell the securities as agent but
may position and resell a portion of the block as principle to facilitate the
transaction; (ii) purchases by a broker or dealer as principle and resale by
such broker or dealer for its own account pursuant to this Prospectus; (iii)
exchange distributions and/or secondary distributions in accordance with the
rules of Nasdaq; (iv) ordinary brokerage transactions and transactions in which
the broker solicits purchasers; and (v) privately negotiated transactions.
Pursuant to the provisions of the Master Acquisition Agreement, the Company
will pay the costs and expenses incident to its registration and qualification
of the Shares offered hereby, including registration and filing fees.
Any securities covered by this Prospectus that qualify for sale pursuant to
Rule 144 or Rule 144A may be sold under Rule 144 or Rule 144A rather than
pursuant to this Prospectus. There can be no assurance that the Selling
Shareholder will sell any or all of the Registrable Shares described herein, and
the Selling Shareholder may transfer, devise or gift such securities by other
means not described herein.
LEGAL MATTERS
Certain legal matters relating to the validity of the Common Stock offered
hereby will be passed upon for the Company by Dewey Ballantine LLP, Los Angeles,
California. Mr. Robert M. Smith, a director of the Company, is a member of the
law firm of Dewey Ballantine LLP.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1997 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
The financial statements of SmarTel and subsidiaries as of December 31,
1995 and 1996 and for the three years in the period ended December 31, 1996
incorporated herein by reference in the Company's Current Report on Form 8-K
dated November 24, 1997 have been audited by Arthur Andersen LLP, independent
accountants, as indicated in their report to opinion with respect thereto, and
are incorporated herein by reference in reliance upon the authority of said firm
as experts in giving said report.
The financial statements of GTI as of December 31, 1996 and for the year
then ended, incorporated herein by reference in the Company's Current Report on
Form 8-K, dated November 24, 1997, have been audited by KPMG Peat Marwick LLP,
independent auditors, as stated in their report incorporated herein by
reference. The report of KPMG Peat Marwick LLP covering the December 31, 1996
financial statements of GTI contains explanatory paragraphs which state that
GTI's financial statements have been restated and that recurring losses from
operations and net capital deficiency raise substantial doubt about GTI's
ability to continue as a going concern. The 1996 GTI financial statements do not
include any adjustments that might result from the outcome of that uncertainty.
The financial statements of GTI as of December 31, 1995 and 1994 and for
the years then ended, incorporated in this Prospectus by reference to the
Company's Current Report on Form 8-K, dated November 24, 1997, have been so
incorporated in reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in auditing and
accounting.
12
<PAGE> 14
The financial statements referred to above and the reports of each of the
accountants referred to above are incorporated herein by reference in reliance
upon said firms as experts in accounting and auditing.
The consolidated financial statements of ConQuest at December 31, 1995 and
1996, and for each of the three years in the period ended December 31, 1996,
incorporated herein by reference to the Company's Current Report on Form 8-K,
dated November 24, 1997, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated herein by reference,
and are incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
The financial statements of Amex Telecom as of December 31, 1996 and
December 31, 1997 and for the years then ended, incorporated herein by reference
in the Company's Current Report on Form 8-K, dated December 22, 1997, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their report
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 317 of the California General Corporation Law (the "CGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorney's fees), as well as judgements, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in parties by
reason of their serving or having served in such capacity. The CGCL provides,
however, that such person must have acted in good faith and in a manner he or
she reasonably believed to be in (or not opposed to) the best interests of the
corporation and, in the case of a criminal action, such person must have had no
reasonable cause to believe his or her conduct was unlawful. In addition, the
CGCL does not permit indemnification in an action or suit by or in the right of
the corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for expenses the court deems proper in
light of liability adjudication. With respect to present or former directors and
officers, indemnity is mandatory to the extent a claim, issue or matter has been
successfully defended.
The Company's Amended and Restated Bylaws (the "Bylaws") provide for
mandatory indemnification of directors and officers generally to the same extent
authorized by the CGCL. Under the Bylaws, the Company shall advance expenses
incurred by an officer or director in defending any such action if the director
or officer undertakes to repay such amount if it is determined that he or she is
not entitled to indemnification. The Company has obtained directors' and
officers' liability insurance.
The Company has entered into separate indemnification agreements with its
directors and officers. Each indemnification agreement provides for, among other
things: (i) indemnification against any and all expenses, liabilities and losses
(including attorney's fees, judgements, fines, taxes, penalties and amounts paid
in settlement) of any claim against an indemnified party unless it is
determined, as provided in the indemnification agreement, that indemnification
is not permitted under applicable law; and (ii) prompt advancement of expenses
to any indemnified party in connection with his or her defense against any
claim.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed 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.
13
<PAGE> 15
- ------------------------------------------------------------
- ------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE DATES AS OF WHICH INFORMATION IS GIVEN IN THIS PROSPECTUS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN
WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING
SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT
IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................... 2
Incorporation of Certain Information by
Reference................................ 2
Cautionary Statement Regarding
Forward-Looking Statements............... 3
Risk Factors............................... 4
Use of Proceeds............................ 11
Selling Security Holders................... 11
Plan of Distribution....................... 12
Legal Matters.............................. 12
Experts.................................... 12
</TABLE>
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
- ------------------------------------------------------------
343,336 SHARES
SMARTALK
TELESERVICES, INC.
COMMON STOCK
------------------------
PROSPECTUS
------------------------
JULY 27, 1998
- ------------------------------------------------------------
- ------------------------------------------------------------
<PAGE> 16
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with the
registration of the Common Stock offered hereby. The Company will bear all of
such expenses. All amounts are estimated except for the Securities and Exchange
Commission registration fee and Nasdaq entry fee.
<TABLE>
<CAPTION>
PAYABLE
BY REGISTRANT
-------------
<S> <C>
SEC registration fee........................................ $ 2,000
Nasdaq entry fee............................................ 6,900
Accounting fees and expenses................................ 5,000
Legal fees and expenses..................................... 7,500
Miscellaneous fees and expenses............................. 3,600
-------
Total............................................. $25,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 317 of the California General Corporation Law (the "CGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorney's fees), as well as judgements, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in parties by
reason of their serving or having served in such capacity. The CGCL provides,
however, that such person must have acted in good faith and in a manner he or
she reasonably believed to be in (or not opposed to) the best interests of the
corporation and, in the case of a criminal action, such person must have had no
reasonable cause to believe his or her conduct was unlawful. In addition, the
CGCL does not permit indemnification in an action or suit by or in the right of
the corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for expenses the court deems proper in
light of liability adjudication. With respect to present or former directors and
officers, indemnity is mandatory to the extent a claim, issue or matter has been
successfully defended.
The Company's Amended and Restated Bylaws (the "Bylaws") provide for
mandatory indemnification of directors and officers generally to the same extent
authorized by the CGCL. Under the Bylaws, the Company shall advance expenses
incurred by an officer or director in defending any such action if the director
or officer undertakes to repay such amount if it is determined that he or she is
not entitled to indemnification. The Company has obtained directors' and
officers' liability insurance.
The Company has entered into separate indemnification agreements with its
directors and officers. Each indemnification agreement provides for, among other
things: (i) indemnification against any and all expenses, liabilities and losses
(including attorney's fees, judgements, fines, taxes, penalties and amounts paid
in settlement) of any claim against an indemnified party unless it is
determined, as provided in the indemnification agreement, that indemnification
is not permitted under applicable law; and (ii) prompt advancement of expenses
to any indemnified party in connection with his or her defense against any
claim.
II-1
<PAGE> 17
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
2.1 Agreement and Plan of Reorganization and Merger, dated as of
June 10, 1998, by and among SmarTalk TeleServices, Inc.,
SMTK Acquisition corp. IV and Worldwide Direct, Inc.(1)
2.2 Agreement and Plan of Reorganization and Merger, dated as of
July 30, 1997, by and among Conquest Telecommunication
Services, Corp., SmarTalk TeleServices, Inc. and SMTK
Acquisition Corp. II.(2)
2.3 Agreement and Plan of Merger, dated May 24, 1997, among
SmarTalk TeleServices, Inc., SMTK Acquisition Corporation,
SmarTel Communications, Inc. and each of the stockholders of
Smartel Communications, Inc.(3)
2.4 Stock Purchase Agreement, dated as of May 31, 1997, by and
among SmarTalk TeleServices, Inc., GTI Telecom, Inc.,
Waterton Investment Group I, LLC and William R. Harger.(4)
2.5 Asset Purchase Agreement, dated October 22, 1997, among
SmarTalk TeleServices, Inc., SMTK NY-1 Corp. and Frontier
Corporation.(5)
2.6 Stock Purchase Agreement, dated as of December 22, 1997, by
and among SmarTalk TeleServices, Inc., American Express
Telecom, Inc. and American Express Travel Related Services
Company, Inc. (without schedules).(8)
3.1 Amended and Restated Articles of Incorporation.(6)
3.2 Amended and Restated Bylaws.(6)
4.1 Registration Rights Agreement.(6)
4.2 Specimen Stock Certificate.(6)
4.3 Terms of Contingent Value Rights.(3)
4.4 Form of SmarTalk TeleServices, Inc. 10% Subordinated Note
Due 2001.(4)
4.5 Registration Rights Agreement, dated as of May 31, 1997,
among SmarTalk TeleServices, Inc., William R. Harger and
Waterton Investment Group I, LLC.(4)
4.6 Indenture, dated as of September 17, 1997, between SmarTalk
TeleServices, Inc. and Wilmington Trust Company, as
Trustee.(7)
4.7 Registration Rights Agreement, dated as of September 12,
1997, among SmarTalk TeleServices, Inc., Donaldson, Lufkin &
Jenrette Securities Corporation and Salomon Brothers Inc.(7)
4.8 Registration Rights Agreement, dated as of June 10, 1998,
among SmarTalk TeleServices, Inc. and certain former
stockholders of Worldwide Direct, Inc.(9)
4.9 Subscription Agreement, dated as of July 8, 1998, by and
between SmarTalk TeleServices, Inc. and Fletcher
International Limited.(10)
4.10 Master Acquisition Agreement, dated as of July 1, 1998,
between SmarTalk TeleServices, Inc. and DTR Associates
Limited Partnership.
5.1 Opinion of Dewey Ballantine LLP regarding legality of shares
being registered.
23.1 Consent of Price Waterhouse LLP.*
23.2 Consent of Arthur Anderson LLP.*
23.3 Consent of KPMG Peat Marwick LLP.*
23.4 Consent of Price Waterhouse LLP.*
23.5 Consent of Ernst & Young LLP.*
23.6 Consent of Ernst & Young LLP.*
</TABLE>
II-2
<PAGE> 18
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S>
23.7 Consent of Dewey Ballantine LLP (included in its opinion
filed as Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
</TABLE>
- ---------------
* To be filed by amendment.
(1) Incorporated by reference to SmarTalk's Form 8-K, dated June 10, 1998.
(2) Incorporated by reference to SmarTalk's Form 8-K, dated July 30, 1997.
(3) Incorporated by reference to SmarTalk's Form 8-K, dated May 28, 1997 (as
amended on Form 8-K/ A).
(4) Incorporated by reference to SmarTalk's Form 8-K, dated June 1, 1997 (as
amended on Form 8-K/A).
(5) Incorporated by reference to SmarTalk's Form 8-K, dated October 22, 1997.
(6) Incorporated by reference to SmarTalk's Registration Statement on Form S-1,
registration number 333-10391, filed with the Securities and Exchange
Commission on August 19, 1996 and the amendments thereto.
(7) Incorporated by reference to SmarTalk's Form 8-K, dated September 17, 1997.
(8) Incorporated by reference to SmarTalk's Form 8-K, dated December 22, 1997
(as amended on Form 8-K/A).
(9) Incorporated by reference to SmarTalk's Registration Statement on Form S-3,
registration number 333-58781 filed with the Securities and Exchange
Commission on July 9, 1998, and the amendments thereto.
(10) Incorporated by reference to SmarTalk's Form 8-K dated July 20, 1998.
(b) FINANCIAL STATEMENT SCHEDULES.
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the financial
statements or notes thereto.
ITEM 17. 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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 percent 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 (1)(i) and (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
with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
II-3
<PAGE> 19
(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.
(4) 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 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 therein, and the offering of such 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 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.
II-4
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Dublin, State of Ohio, on the twenty-seventh day of July, 1998.
SMARTALK TELESERVICES, INC.
By: /s/ ERICH L. SPANGENBERG
--------------------------------------
Name: Erich L. Spangenberg
Title: Vice Chairman of the Board of
Directors
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Robert
H. Lorsch, Erich L. Spangenberg and Thaddeus Bereday his true and lawful
attorney-in-fact and agents, each acting alone, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, each acting alone,
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 to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
substitute or 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
dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ ROBERT H. LORSCH Chairman of the Board July 27, 1998
- -------------------------------------------------------- of Directors
Robert H. Lorsch
/s/ ERICH L. SPANGENBERG Vice Chairman of the Board July 27, 1998
- -------------------------------------------------------- of Directors and
Erich L. Spangenberg Chief Executive Officer
(Principal Executive Officer)
/s/ GLEN ANDREW FOLCK Chief Financial Officer and July 27, 1998
- -------------------------------------------------------- Vice President
Glen Andrew Folck Finance/Operations
(Principal Financial and
Accounting Officer)
/s/ FRED F. FIELDING Director July 27, 1998
- --------------------------------------------------------
Fred F. Fielding
/s/ KENNETH A. VIELLIEU Director July 27, 1998
- --------------------------------------------------------
Kenneth A. Viellieu
/s/ ROBERT M. SMITH Director July 27, 1998
- --------------------------------------------------------
Robert M. Smith
</TABLE>
II-5
<PAGE> 1
EXHIBIT 4.10
MASTER ACQUISITION AGREEMENT
This Master Acquisition Agreement (this "Agreement"), dated as of July
1, 1998, is made by and among DTR Associates Limited Partnership (d/b/a Direct
to Retail) ("DTR"), DTR Associates, Inc., Victor Grillo, Sr., Raymond J.
Wysocki, Jr. and SmarTalk TeleServices, Inc., a California corporation ("SMTK").
WHEREAS, SmarTalk is engaged in the business of selling pre-paid
telecommunications products and services, including Prepaid Cellular Phones (as
defined herein) sold directly to consumers.
WHEREAS, DTR has specialized expertise in the sale of consumer products
sold through retail distribution, including with respect to the Retail Accounts
(as defined herein).
WHEREAS, DTR desires to sell, and SmarTalk desires to purchase, all of
the assets of DTR comprising the Business (as defined herein), on the terms and
conditions specified in this Agreement.
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements contained herein, and for other good and
valuable consideration had and received, the receipt and sufficiency of which
are hereby acknowledged, and subject to the terms and conditions set forth
herein, the parties to this Agreement hereby covenant and agree as follows:
I. PRODUCTIVITY OF BUSINESS. During the term of this Agreement, (i) DTR
will be SMTK's retail account representative with respect to prepaid
cellular phones utilizing the handset based Telemac technology and
Phillips hardware ("Prepaid Cellular Phones") to the accounts listed on
Exhibit A, (ii) DTR will be permitted to sell prepaid phone cards for
cellular carrier service, whether furnished exclusively or in
conjunction with landline long distance service, and whether offered by
SMTK as a proprietary SMTK-branded card or by an authorized third party,
authorized by SMTK for sale in connection with the Prepaid Cellular
Phones ("Cellular Cards"), and (iii) DTR shall act as SMTK's master
representative for those accounts designated by a double asterisk on
Exhibit A (the "Retail Accounts"). DTR will pay and be solely
responsible for all commissions, fees, costs and expenses payable to
sales representatives, sub-representatives or otherwise incurred by DTR
in connection with the accounts listed on Exhibit A. SMTK and DTR will
cooperate in good faith to transfer the existing sales representative
relationships with respect to the Retail Accounts from SMTK to DTR,
pursuant to a mutually acceptable assignment and assumption agreement.
<PAGE> 2
II. PURCHASE OF ASSETS. Pursuant to a Bill of Sale and Assignment in
substantially the form of Exhibit B, and Assignment and Assumption
Agreements in substantially the form of Exhibit C (which shall be
executed within a reasonable period of time after the execution of this
Agreement and which thereafter shall become attached to and become a
part of this Agreement), DTR shall transfer, convey, assign and deliver
to SMTK, and SMTK shall purchase and assume, all of the assets, rights
and benefits of DTR related to its ownership, marketing, sale or
distribution of any prepaid products or any telecommunications products
(the "Acquired Assets"). Without limiting the generality of the
foregoing, the Acquired Assets shall include (collectively, the
"Business") (i) all of DTR's rights, claims and assets related to its
business and legal relationships with Philips Consumer Communications
and its affiliates ("Phillips"), Telemac Cellular Corporation and its
affiliates ("Telemac"), Shared Technologies Cellular, Inc. and its
affiliates ("STC"), Worldwide Direct, Inc. and its affiliates ("WWD"),
(ii) any other assets or rights owned by DTR relating to Prepaid
Cellular Phones or the business of WWD (including all inventory,
equipment, intellectual property or other assets, but excluding all
cash, accounts receivable, office supplies, office equipment, personal
computers, commercially available software and expressly excluding all
rights to use of the name "Direct To Retail" or "DTR" or the associated
logos, trademarks or service marks). SMTK shall also have the right, but
not the obligation, to solicit and hire any of DTR's employees (other
than senior management personnel of DTR) employed in connection with the
Business, and DTR shall cooperate and assist SMTK in connection with
such matters. At any time, SMTK shall also have the right to return all
or any portion of the Acquired Assets to DTR, and such returned assets
shall thereafter no longer be considered part of the "Acquired Assets".
III. NO LIABILITIES. Notwithstanding anything to the contrary contained
herein, in no event will SMTK acquire or be responsible for any
obligations or liabilities, known or unknown, contingent or absolute, of
DTR in connection with the Business arising prior to July 1, 1998. SMTK
shall be responsible for any and all performance obligations arising in
the ordinary course of the Business under contractual rights sold and
transferred hereby and any and all liabilities of the Business accruing
after July 1, 1998. In accordance with Section VIII.J, DTR, Victor
Grillo, Sr. and Raymond J. Wysocki, Jr. will indemnify, defend and hold
SMTK harmless against any and all liabilities not expressly assumed by
SMTK hereby.
IV. CONSIDERATION. In full consideration for the purchase of the Acquired
Assets, SMTK shall pay to DTR the following:
A. Fixed Portion. Upon execution of this Agreement:
1. $5,000,000 payable in newly issued voting common stock,
no par value, of SMTK (the "Shares"), valued at the
closing price on the NASDAQ national market on the last
trading day immediately
-2-
<PAGE> 3
preceding the date of issuance of such Shares. SMTK
will cause a shelf registration statement to be filed as
promptly as practicable in order to effect the
registration of the Shares and will use its reasonable
best efforts to cause such registration statement to
become effective on or before December 31, 1998 and
remain continuously in effect with respect to any
additional Shares that may be issued to DTR by SMTK
pursuant to the terms and conditions of this Agreement.
2. A non-interest bearing promissory note in substantially
the form attached hereto as Exhibit D in the principal
amount of $5,000,000 cash payable in installments of:
$1,000,000 on August 30, 1998; $1,000,000 on September
30, 1998; $1,000,000 on October 30, 1998; $1,000,000 on
November 30, 1998; and $1,000,000 on December 30, 1998.
B. Earn-Out bonus Portion:
1. If calendar year 1998 SMTK sales of Prepaid Cellular
Phones sold by DTR or its representatives through the
accounts listed on Exhibit A exceed 200,000 units (net
of all promotions, free goods and returns) ("Unit Net
Sales"), SMTK will pay to DTR $2,000,000 payable, at
SMTK's option, in cash or in additional Shares (valued
at the closing price on the NASDAQ national market on
the last trading day immediately preceding the date of
issuance of such Shares). Any payment due under this
Section IV.B.1 shall be made no later than February 28,
1999.
2. During calendar year 1999, SMTK will pay to DTR an
additional $1,250,000 for each 250,000 unit increment in
Unit Net Sales sold through the accounts listed on
Exhibit A, payable, at SMTK's option in cash or in
additional Shares (valued at the closing price on the
NASDAQ national market on the last day of the month in
which such 250,000th incremental unit is sold);
provided, however, in no event shall the payments earned
under this Section IV.B.2 exceed $5,000,000 in the
aggregate. Any payments due under this Section IV.B.2
shall be made no later than sixty (60) days following
the last day of the calendar quarter during which such
250,000th incremental unit is sold.
3. If calendar year 1999 Unit Net Sales through the
accounts listed on Exhibit A exceed 1,200,000 units in
the aggregate, SMTK will pay to DTR an additional
$2,000,000 payable, at SMTK's option, in cash or in
additional Shares (valued at the closing price on the
NASDAQ national market on the last trading day
immediately preceding the date of issuance of such
Shares). Any payment due
-3-
<PAGE> 4
under this Section IV.B.3 shall be made no later than
February 28, 2000.
C. Earn-Out Percentage Portion. During the term of this Agreement:
1. SMTK shall pay 5% commission to DTR in connection with
SMTK's "net sales" (less any promotions, free goods or
returns) of Prepaid Cellular Phones sold by DTR or its
representatives to the accounts listed on Exhibit A.
2. SMTK shall pay 4% commission to DTR in connection with
SMTK's "net sales" (less any promotions, free goods or
returns) of SMTK prepaid phone cards exclusively for
landline long distance sold by DTR or its
representatives to the accounts listed on Exhibit A.
3. From and after January 1, 1999, SMTK shall pay 1%
commission to DTR in connection with SMTK's "net sales"
(less any promotions, free goods or returns) of Cellular
Cards sold by DTR or its representatives to the accounts
listed on Exhibit A.
4. All payments under this Section IV.C.1-3 with respect to
the Earn-Out Percentage Portion shall be made (i) on net
30 day terms, with respect to unit shipments that occur
within the first 15 calendar days of any calendar month,
and (ii) on net 45 day terms, with respect to unit
shipments that occur on or between the 15th to the 31st
calendar days of any calendar month.
V. SHARED PAYMENT. DTR represents it is owed approximately $2,500,000 due
from STC. If DTR receives from STC payment of $2,000,000 (80% of the
amount owed) on or before December 31, 1998, then SMTK's obligation
under either Section IV.B.2 or Section IV.B.3 with respect to the
Earn-Out Bonus Portion payable for 1999 Unit Net Sales will be reduced
by $1,000,000; provided, however, that (i) such $1,000,000 reduction
shall offset the last payment of the Earn-Out Bonus Portion reasonably
expected to be made with respect to 1999 Units Net Sales and (ii) if
actual 1999 Unit Net Sales are inadequate to permit SMTK to receive full
credit for such $1,000,000 reduction, then DTR will promptly refund or
pay to SMTK any shortfall up to the full amount of such $1,000,000
reduction. DTR will use its reasonable best efforts to collect all its
receivables from STC on or before December 31, 1998.
VI. NON-COMPETE. During the term of this Agreement and for a period of
three (3) years thereafter, except as provided herein or without the
prior written approval of SMTK, DTR, Victor Grillo, Sr., Raymond J.
Wysocki, Jr. and Christine McCartney will not, directly or indirectly,
alone or as a partner, joint venturer, officer, director, employee,
consultant, agent, independent contractor, guarantor, financeer,
consultant, option holder or stockholder (other than as an option holder
-4-
<PAGE> 5
or stockholder of less than five percent (5%) of the issued and
outstanding stock of any publicly-held corporation whose common stock is
listed on a national securities exchange or traded on NASDAQ) of any
company or business, participate in, engage in or have a financial
interest in any "Competitive Business" within the United States. For
purposes of the foregoing, "Competitive Business" shall mean any
business, firm, corporation or other business entity related to the
manufacture, marketing, sale or distribution of any telecommunications
products or services, all prepaid products or services and any business
now or hereafter competing with any products or services of SMTK or WWD.
Notwithstanding the foregoing, DTR shall be permitted to present to SMTK
opportunities in writing for the sale at retail of new prepaid products
or services. Such notice shall set forth a reasonable description of
such product and a request by DTR that SMTK approve the sale by DTR of
such products. Upon receipt of such notice, SMTK may, in its sole
discretion, within thirty (30) days of such notice, approve or refuse to
approve in writing the sale by DTR of such products. Any such written
approval with respect to a product once given shall be irrevocable. It
is expressly understood that SMTK would not enter into this Agreement
without the guarantees contained in this paragraph, all of which are
acknowledged by DTR and the individuals listed above to be reasonable as
to duration, geographic coverage and scope.
VII. TERMINATION. SMTK may terminate DTR's sales representative arrangement
and its distribution rights under this Agreement (i) without cause, at
any time upon 30 days advance written notice, provided that SMTK will
thereafter remain obligated to make all payments to DTR otherwise
payable hereunder, whether accruing before or after the date of such
termination, (ii) only for cause (as defined below), immediately without
any further obligation or liability whatsoever to DTR, except for the
obligation to make payments due hereunder properly accruing before the
date of such termination, subject to SMTK's right of offset, or (iii) if
SMTK becomes subject to telecommunications laws or regulations that
would materially conflict with the terms of this Agreement or
substantially prohibit SmarTalk's ability to perform hereunder. For
purposes hereof, "cause" shall be defined as (i) a willful breach by DTR
or its affiliates of any material provision of this Agreement, (ii)
commission by DTR or its affiliates of any criminal or fraudulent act in
connection with SMTK or the Business, or (iii) DTR filing any bankruptcy
proceeding or becoming insolvent, making an assignment for the benefit
of creditors, or failing to pay any indebtedness when due hereunder.
VIII. OTHER PROVISIONS.
A. This Agrement supersedes (i) the Joint Marketing Agreement,
dated February 13, 1998, between WWD and DTR and (ii) the letter
agreement, dated June 10, 1998 between SMTK, DTR and Victor
Grillo Sr., both of which are hereby expressly terminated and of
no further force or effect. Neither SMTK, WWD, DTR or Victor
Grillo Sr. shall have any liability to the others based of the
terms of such Joint Marketing Agreement or such letter
agreement.
-5-
<PAGE> 6
B. During 1998, pursuant to the current lease, WWD may continue to
lease all of WWD's existing office space from DTR, at the rate
currently offered to WWD. With respect to calendar year 1999,
DTR and WWD shall amend the lease to provide rent for calendar
year 1999 at one-half of the monthly fair market rental value,
as determined by a third party mutually acceptable to SMTK and
DTR.
C. SMTK will provide at least 90 days advance notice to DTR before
initiating any product change in the Prepaid Cellular Phones as
currently offered for sale by WWD. From time to time, SMTK will
advise DTR of revisions to SMTK's marketing and distribution
strategies to assist DTR in performing its obligations under
this Agreement.
D. SMTK shall be entitled to establish pricing (as well as any
discounts, promotions, credit or return policies) for the
Prepaid Cellular Phones, in it sole discretion, provided that
such pricing is afforded to DTR on a "most favored nations"
basis. SMTK shall also be entitled to establish pricing (as
well as any discounts, promotions, credit or return policies),
in its sole discretion, for all SMTK prepaid wireless and
landline phone cards, whether sold in connection with the
Prepaid Cellular Phones or otherwise.
E. SMTK shall be entitled to all Acquired Assets of DTR as of the
date hereof relating to Prepaid Cellular Phones or the Business.
DTR represents and warrants to SMTK as follows:
1. DTR is validly organized, in good standing and
authorized to enter into this Agreement. This Agreement
constitutes a binding and enforceable Agreement against
DTR or the other signatories hereto.
2. DTR holds good and marketable title to all of the
Acquired Assets, free and clear of any liens, but
subject to any security interests of record, all of
which DTR shall have satisfied, discharged and released
on or before August 1, 1998.
3. The Acquired Assets are all of the assets owned by DTR
relating to the Business, including the conduct of DTR's
business relating to Prepaid Cellular Phones.
4. The payments and other consideration provided to DTR by
SMTK hereunder represent full and complete payment for
(i) all services contemplated to be rendered by DTR
hereunder, (ii) all of the Acquired Assets and (iii) all
of the assets relating to the Business.
F. DTR will use its reasonable best efforts to: (i) assist SMTK in
the development and expansion of its business and of the
business of WWD through the performance in good faith of DTR's
duties and obligations under this Agreement,
-6-
<PAGE> 7
(ii) maximize the value of the business of SMTK and WWD, (iii)
sell Prepaid Cellular Phones and SMTK products and services to
accounts listed on Exhibit A, and (iv) do all other things
necessary or desirable to carry out the purposes and intent of
this Agreement.
G. SMTK represents and warrants to DTR that SMTK is validly
organized, in good standing and authorized to enter into this
Agreement. This Agreement constitutes a binding and enforceable
agreement against SMTK or the other signatories hereto.
H. DTR will provide specified services and merchandising, as
mutually agreed upon with SMTK, to support the procurement of
accounts and increase the sell through of accounts. DTR and
SMTK will cooperate in good faith to develop mutually acceptable
sales plans and strategies designed to increase DTR's sales
performance under this Agreement. DTR will follow all of SMTK's
reasonable directions in connection with selling the Prepaid
Cellular Phones under this Agreement.
I. Without the prior written consent of the non-disclosing party,
DTR and SmarTalk will not, or at any time thereafter for any
reason, in any fashion, form or manner, either directly or
indirectly, divulge, disclose or communicate to any person,
firm, corporation or other business entity, in any manner
whatsoever, any confidential information or trade secrets
concerning the business of DTR or SMTK.
J. DTR, Victor Grillo, Sr. and Raymond J. Wysocki, Jr. shall
severally indemnify, defend and hold harmless SMTK and its
affiliates from any inaccuracy in any of DTR's representations
or warranties to SMTK or for any breach by DTR of any of the
provisions of this Agreement; provided, however, in no event
shall DTR or its affiliates be responsible for liabilities
arising from the negligence or willful misconduct of SMTK.
K. SMTK shall indemnify, defend and hold harmless DTR and its
affiliates from any inaccuracy in any of SMTK's representations
or warranties to DTR or for any breach by SMTK of any of the
provisions of this Agreement; provided, however, in no event
shall SMTK be responsible for liabilities arising from the
negligence or willful misconduct DTR or its affiliates.
L. This Agreement and the duties hereunder may not be delegated or
assigned, except with the prior written consent of the other
parties hereto. This Agreement shall remain binding upon
successors and permitted assigns, including successors and
assigns to the business of SMTK or DTR, whether by merger,
purchase of assets or otherwise.
M. Nothing in this Agreement shall create any relationship between
the parties other than that as independent contractor, and no
party shall have any authority to hire
-7-
<PAGE> 8
any person on behalf of any other party, and the employees and
agents of any party will not be considered or construed as being
employees of any other party. No party will, and has no
authority to, enter into any contract or agreement in the name
of or on behalf of any other party. No party will, expressly or
by implication, suggest to any third party that it has any
relationship with any other party other than that of an
independent contractor, nor that it has any authority to enter
into agreements or contracts on behalf of, or in the name of,
any other party.
N. Each party acknowledges the exclusive ownership, right, title
and interest of the other parties (directly or indirectly) in
and to the trademarks and servicemarks, and the patents,
copyrights and software (in each case whether or not registered)
of such other party, and each party acknowledges that nothing in
this Agreement is intended to transfer any ownership, rights,
title or interest in such intellectual property to the other
parties. No party will at any time do or cause to be done any
act or thing contesting or impairing in any way any such other
party's right, title and interest, and no party will, or permit
any employee or other agent to, use any other party's equipment,
software, trademarks, trade names, service marks, licenses,
patents, trade secrets or other intellectual property or other
property for any purpose or activity except as expressly
authorized or contemplated by this Agreement.
O. This Agreement contains the entire agreement among the parties
with respect to the subject matter hereof and shall be
enforceable in accordance with the internal substantive laws of
the State of Ohio.
P. The term of this Agreement will commence as of the date first
written above and end on December 31, 1999, unless earlier
terminated or extended by mutual agreement of the parties. Upon
expiration or termination of this Agreement, all terms and
provisions (except for provisions relating to confidentiality,
indemnification, non-competition or the obligations to make
payments properly accruing before such termination) will cease
and be of no further force and effect, and no party will have
any obligations to the others except as expressly provided
herein.
[remainder of this page intentionally left blank]
-8-
<PAGE> 9
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized representatives.
SMARTALK TELESERVICES, Inc.
/s/ ERICH L. SPANGENBERG
-----------------------------
By: Erich L. Spangenberg
Its: Chief Executive Officer
DTR ASSOCIATES LIMITED PARTNERSHIP
By its sole general Partner
DTR Associates, Inc.
/s/ VICTOR GRILLO, SR.
-----------------------------
By: Victor Grillo, Sr.
Its: Chief Executive Officer
DTR ASSOCIATES, INC.
/s/ VICTOR GRILLO, SR.
-----------------------------
By: Victor Grillo, Sr.
Its: President
The undersigned execute this Agreement solely with respect to, and to
acknowledge their several responsibilities under, Section II concerning sale of
the Acquired Assets, Section III concerning DTR's liabilities (it being
understood that the undersigned shall only be personally responsible under
Section III to the extent of their personal knowledge), Section VI with respect
to non-competition, and Section VIII.K with respect to indemnification.
/s/ VICTOR GRILLO, SR.
-----------------------------
Victor Grillo, Sr.
/s/ RAYMOND J. WYSOCKI
-----------------------------
Raymond J. Wysocki
-9-
<PAGE> 10
The undersigned executes this Agreement solely with respect to Sections
VIII.A and VIII.B.
WORLDWIDE DIRECT, INC.
/s/ VICTOR GRILLO, SR.
-----------------------------
By: Victor Grillo, Sr.
Its: President
<PAGE> 11
For and in consideration of $5,000 cash had and received, the receipt
and sufficiency of which is hereby acknowledged, the undersigned executes this
Agreement solely with respect to, and to acknowledge her responsibilities
under, Section VI with respect to non-competition.
/s/ CHRISTINE McCARTNEY
-----------------------------
Name: Christine McCartney
<PAGE> 1
EXHIBIT 5.1
July 27, 1998
SmarTalk TeleServices, Inc.
5500 Frantz Road, Suite 125
Dublin, Ohio 43017
Dear Sirs:
In connection with the registration under the Securities Act of 1933 (the
"Act") of 343,336 shares (the "Securities") of Common Stock, no par value, of
SmarTalk TeleServices, Inc., a California corporation (the "Company"), we, as
your special counsel, have examined such corporate records, certificates and
other documents, and such questions of law, as we have considered necessary or
appropriate for the purposes of this opinion. Upon the basis of such
examination, we advise you that, in our opinion, the Securities are validly
issued, fully paid and nonassessable.
The foregoing opinion is limited to the Federal laws of the United States,
and the laws of the State of California, and we are expressing no opinion as to
the effect of the laws of any other jurisdiction.
We have relied as to certain matters on information obtained from public
officials, officers of the Company and other sources believed by us to be
responsible.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement and to the references to us under the heading "Legal
Matters" in the Prospectus. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
/s/ Dewey Ballantine LLP
