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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 18, 2000
REGISTRATION NO. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Z-TEL TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 59-3501119
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
601 SOUTH HARBOUR ISLAND BOULEVARD, SUITE 220
TAMPA, FLORIDA 33602
(Address of Principal Executive Offices)
THE 1998 EQUITY PARTICIPATION PLAN
OF
Z-TEL TECHNOLOGIES, INC.
(Full Title of the Plan)
JEFFREY H. KUPOR
GENERAL COUNSEL
Z-TEL TECHNOLOGIES, INC.
601 SOUTH HARBOUR ISLAND BOULEVARD, SUITE 220
TAMPA, FLORIDA 33602
(813) 273-6261
(Name, Address, and Telephone Number of Agent For Service)
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CALCULATION OF REGISTRATION FEE
============================ ================= =============================== ============================== ==============
AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE REGISTRATION
REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) FEE
---------------------------- ----------------- ------------------------------- ------------------------------ --------------
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Common Stock, par value
$0.01 per share (the 8,250,000 (2) $11.9375 $98,484,375 $25,999.875
"Common Stock")
============================ ================= =============================== ============================== ==============
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(1) Estimated solely for the purpose of calculating the registration
fee. Pursuant to Rule 457(h), the proposed maximum offering price per share is
estimated based on the average of the high and low sales prices of the
registrant's Common Stock on the Nasdaq National Market on July 13, 2000.
(2) Together with an indeterminate additional number of shares which
may be issuable pursuant to the anti-dilution provisions of The 1998 Equity
Participation Plan of Z-Tel Technologies, Inc.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed with the Securities and Exchange
Commission (the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Z-Tel
Technologies, Inc. (the "Company") are incorporated herein by reference as
of their respective dates:
(a) The Company's Annual Report on Form 10-K (Commission file No.
000-28467) for the year ended December 31, 1999, as filed with the
Commission on March 28, 2000.
(b) The Company's Quarterly Report on Form 10-Q (Commission file
No. 000-28467) for the three months ended March 31, 2000, as filed with the
Commission on May 12, 2000.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
the end of the fiscal year covered by the registrant document referred to
in (a) above.
(d) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (Commission File No. 0-28467),
as filed with the Commission on December 10, 1999.
All documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference and to be part hereof from the date of filing
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "GCL") provides that a
Delaware corporation has the power to indemnify its officers and directors
in certain circumstances. The Company's Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws provide for such
indemnification by the Company to the fullest extent permitted by the GCL.
In addition, the Company has agreed to indemnify its directors and
executive officers to the fullest extent permitted by the GCL. The Company
has also agreed that, in the event the Company is not able to indemnify its
directors and executive officers (other than for circumstances under which
such persons are not entitled to indemnification by the Company), the
Company shall contribute to the amount of expenses (including attorneys'
fees), judgments, fines and settlement amounts paid or to be paid by any of
its directors or executive officers if the Company and such person are
jointly liable.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding provided that such director
or officer acted in good faith in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, provided that such director or officer
had not reasonable cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify
any director or officer, or former director or officer, who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any
of the capacities set forth above, against expenses (including attorneys'
fees) actually and reasonably incurred in connection with the defense or
settlement of such action or suit provided that such director or officer
acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, except that no
indemnification may be made in respect to any claim, issue or matter as to
which such director or officer shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action was brought shall determine that despite the
adjudication of liability such director or officer is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsections (a) and (b) or in the defense
of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification
provided for by Section 145 shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
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her or incurred by him or her in any such capacity or arising out of his or
her status as such whether or not the corporation would have the power to
indemnify him or her against such liabilities under Section 145.
The Company has in effect insurance policies in the amount of
$5,000,000 for general officer's and directors' liability insurance covering
aggregate losses of the Company's directors and officers in certain
circumstances where by law they may not be indemnified by the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase of 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 and 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 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 subparagraphs (a)(1)(i) and
(a)(1(ii) do not apply if the registration statement
is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a
post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished
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to the Commission by the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration, by means of a
post-effective amendment, any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on the Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tampa, State of Florida, on this 12th day of June,
2000.
Z-TEL TECHNOLOGIES, INC.
/s/ D. GREGORY SMITH
----------------------------------------
D. Gregory Smith
President, Chief Executive Officer,
Chairman of the Board and Director
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers and
directors of Z-Tel Technologies, Inc., for himself and not for one another, does
hereby constitute and appoint D. Gregory Smith, Mark H. Johnson, and Jeffrey H.
Kupor, and each of them, a true and lawful attorney in his name, place and
stead, in any and all capacities, to sign his name to any and all amendments,
including post-effective amendments, to this registration statement, with
respect to the proposed issuance, sale and delivery of shares of its Common
Stock, and to cause the same to be filed with the Securities and Exchange
Commission, granting unto said attorneys and each of them full power and
authority to do and perform any act and thing necessary and proper to be done in
the premises, as fully to all intents and purposes as the undersigned could do
if personally present, and each of the undersigned for himself hereby ratifies
and confirms all that said attorneys or any one of them shall lawfully do or
cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
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SIGNATURE TITLE DATE
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/s/ D. GREGORY SMITH President, Chief Executive Officer, June 12, 2000
--------------------------- Chairman of the Board, and Director
D. Gregory Smith (Principal executive officer)
/s/ JOHN M. HUTCHENS Chief Financial Officer (Principal June 12, 2000
--------------------------- financial and accounting officer)
John M. Hutchens
/s/ LAURENCE S. GRAFSTEIN Director June 12, 2000
---------------------------
Laurence S. Grafstein
/s/ JEFFREY A. BOWDEN Director June 12, 2000
---------------------------
Jeffrey A. Bowden
/s/ EDWARD J. MAYER Director June 12, 2000
---------------------------
Edward J. Mayer
/s/ BUFORD H. ORTALE Director June 12, 2000
---------------------------
Buford H. Ortale
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Amended and Restated Certificate of Incorporation, as amended.
4.2 Amended and Restated By-laws. Incorporated by reference to Exhibit
3.2 to Amendment No. 1 to the Company's Registration Statement on
Form S-1 filed with the Commission November 22, 1999 (SEC File No.
333-89063).
5 Opinion of Counsel.
23 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney (contained on signature page).
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