<PAGE>
-------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
---------------------------
USA TALKS.COM, INC.
(Exact Name of Registrant as Specified in Charter)
Nevada 93-0915593
(Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification Number)
4180 LA JOLLA VILLAGE DRIVE, SUITE 570
LA JOLLA, CA 92121
(Address of Principal Executive Offices)
USA TALKS.COM, INC. CONSULTING AGREEMENT
(Full title of the Plan)
Allen J. Portnoy
4180 LA JOLLA VILLAGE DRIVE SUITE 570
LA JOLLA, CALIFORNIA 92037
858-546-0550
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copies of communications to:
Stephen A. Storey
USA Talks.com, Inc.
4180 La Jolla Village Drive, Suite 570
La Jolla, CA 92037
(858) 546-0550
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per share 1,500,000 $0.625(1) $937,500 (1) $260.63
</TABLE>
(1) Computed pursuant to Rules 457 (c ) and 457 (h) (l) based on bid price of
the Common Stock on August 18, 1999. The stock is traded on the OTC: USAT.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORTION OF CERTAIN DOCUMENTS BY REFERENCE.
This registration Statement on Form S-8 is filed pursuant to General
Instruction E for the purpose of registering shares of Common Stock of USA
Talks.com,. Inc. (the Registrant) issuable as full settlement of compensation
due pursuant to an Agreement with an independent consultant. The information
set forth below is incorporated by reference in this Registration Statement
as provided by General Instruction E and as otherwise provided by the General
Instructions to Form S-8. The Registrant hereby incorporates by reference in
this Registration Statement the following documents filed with the Commission
by the Registrant pursuant to the Exchange Act of 1934, as amended:
1. The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1998;
2. The Registrant's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1999, and June 30, 1999 and September 30, 1999;
3. The Registrant's Current Reports on Form 8-K filed on June 29, 1999 and July
27, 1999; 4. Articles of Incorporation, as amended, as filed with Form S-8 On
July 31, 1998.
5. Bylaws as filed with Form S-8 On July 31, 1998.
6. All other reports filed by the Registrant or the Plan pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered
by its annual report referred to in paragraph (1) above.
All documents and other reports subsequently filed by the Registrant
pursuant to Section 13 (a), 13 (c ), 14 or 15 (d) of the Exchange Act after
the date of this Registration Statement and prior to the filing of a
post-effective amendment to this Registration Statement 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
Registration Statement and to be part hereof from the date of filing of such
documents or reports. Any statements contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document
which also is, or is deemed to be, incorporated by reference herein
superseded shall not be 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 Registration Statement.
<PAGE>
ITEM 4. DESRIPTION OF SECURITIES
The Registrant=s authorized capital stock consists of (i)
400,000,000 shares of Common Stock, par value $.001 per share, of which
80,123,456 shares were outstanding as of the date of this Registration
Statement, (ii)1,000 shares of Class A Preferred Stock, par value $.001 per
share, with other terms or preferences to be set by the Registrant=s board of
directors, none of which are outstanding as of the date of this Registration
Statement, (iii) 1,000 shares of Class B Preferred Stock, par value $.001 per
share, with other terms or preferences to be set by the Registrant=s board of
directors, none of which are outstanding as of the date of this Registration
Statement, (iv) 1,000 shares of Class C Preferred Stock, par value $.001 per
share, with other terms or preferences to be set by the Registrant=s board of
directors, none of which are outstanding as of the date of this Registration
Statement. Each share of Common Stock has equal rights as to voting and in
the event of dissolution and liquidation. There is no cumulative voting by
shareholders. Shareholders have no preemptive rights to acquire any shares of
Registrant.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection I of Section 78.7502 of Chapter 78 of the Nevada General
Corporation Law ("NGCL") empowers a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (except in an action by or in the right of
the corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation or enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, if he
acted in good faith or in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding by judgment, order settlement, conviction or
upon a plea of nolo contedere or its equivalent, does not, of itself, create
a presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he
had reasonable cause to believe his action was unlawful.
Subsection 2 of Section 78.7502 of the NGCL empowers a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he acted in any of the capacities set forth above, against
expenses, including amounts paid in settlement and attorneys= fees, actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in accordance with the standard set forth
above, except that no indemnification may be made in respect of any claim,
issue or matter as to which
<PAGE>
such person shall have been adjudged by a court liable to the corporation or
for amounts paid in settlement to the corporation unless and only to the
extent that the court in which such action or suit was brought or other court
of competent jurisdiction determines that, in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnify for
such expenses as the court deems proper.
Section 78.751 of the NGCL provides that unless indemnification is
ordered by a court, the determination to provide indemnification must be made by
the stockholders, by a majority vote of a quorum of the board of directors who
were not parties to the action, suit or proceeding, or in addition the articles
of incorporation, by laws or an agreement made by the corporation may provide
for the payment of the expenses of a director or officer of the expenses of
defending an action as incurred upon receipt or an undertaking to repay the
amount if it is ultimately determined by a court of competent jurisdiction that
the person is not entitled to indemnification Section 78.751 of the NGCL further
provides that, to the extent a director or officer of a corporation has been
successful on the merits or other wise in (1) and (2), or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; that indemnification provided by section 78.751 of the
NGCL shall not be deemed exclusive of the other rights to which the indemnified
party may be entitled and that the scope of indemnification shall continue as to
directors, officers, employees or agents who have ceased to hold such positions,
and to their heirs, executors and administrators.
Finally, Section 78.752 of the NGCL empowers the corporation to
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising our of his status as such
whether or not the corporation would have the authority to indemnify him
against such liabilities and expenses.
The Registrant=s articles of incorporation provide that, as the board
of directors of the Registrant may provide from time to time, in the bylaws or
by resolution, the Registrant may indemnify its officers, directors, agents and
other persons to the full extent permitted by the laws of the State of Nevada.
The Registrant=s bylaws provide for indemnification of officers, directors and
others and purchase of insurance pursuant to provision based on the foregoing
provisions of the NGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits it incorporated
herein by reference.
<PAGE>
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes;
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the 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 the
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or other
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 expresses in the Act and
will be governed by the final adjudication of such issues.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for the filing on Form S-8 and has duly caused the Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized in San Diego, CA, on August 18, 1999.
USA Talks.com, Inc.
By:/s/ Allen J. Portnoy
Allen J. Portnoy
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, Registrtion
Statement on Form S-8 has been signed by the following persons in the capacities
and on the date indicated..
<TABLE>
<CAPTION>
Signatures Title Date
<S> <C> <C>
/s/ Allen J. Portnoy Chief Executive Officer,
- --------------------- Secretary and Director August 18, 1999
Allen J. Portnoy
/s/ Stephen A. Storey President and Director August 18, 1999
- ---------------------
Stephen A. Storey,
/s/ Jack C. Alexander Chief Financial Officer August 18, 1999
- ---------------------
Jack C. Alexander
/s/ Max Spencer Kissell Director August 18, 1999
- ------------------------
Max S. Kissell
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Exhibit
- ------- -------
<S> <C>
4.1 USA Talks.com, Inc. Consulting Agreement
4.2 Resolution of the Board of Directors
authorizing issuance of shares
</TABLE>
<PAGE>
Exhibit 4.1
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (the "Agreement") is made as of January 1,
1999 by and between USA Talks.com, Inc., a Nevada corporation (the "Company")
and Roger Remillard, (herein called the "Consultant").
WITNESSETH:
For and in consideration of the mutual promises and covenants herein
contained, the parties hereto mutually agree as follows:
SECTION 1. DEFINITIONS. For the purposes of this Agreement, the following terms
have the meanings specified or referred to in this Section 1.
"CONFIDENTIAL INFORMATION"-- any and all:
(a) trade secrets concerning the business and affairs of the Company,
including, but not limited to, information related to speech recognition
technology, product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings, samples, inventions
and ideas, past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes, customer lists,
current and anticipated customer requirements, price lists, market studies,
business plans, computer software and programs (including object code and source
code), computer software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas, designs, methods
and information, and all mask works), and any other information, however
documented.
(b) information concerning the business and affairs of the Company
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans, the
names and backgrounds of key personnel, personnel training and techniques and
materials, however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Company containing or based, in whole or in
part, on any information included in the foregoing.
"INVENTION"-- any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether
registerable or not), any mask work, however fixed or encoded, that is
suitable to be fixed, embedded or programmed in a semiconductor product
(whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed
by Consultant, either solely or in conjunction with others, during the term
of the Agreement, or
<PAGE>
a period that includes a portion of the term of the Agreement, that relates in
any way to, or is useful in any manner in, the business then being conducted or
proposed to be conducted by the Company, and any such item created by
Consultant, either solely or in conjunction with others, following termination
of this Agreement, that is based upon or uses Confidential Information.
SECTION 2. CONSULTING AGREEMENT. The Company hereby retains the Consultant for
the term and upon the terms and conditions hereinafter set forth to perform
technical consulting services for the Company, and the Consultant hereby agrees
to perform such consulting services as required such as, but not limited to:
1. Research to develop technology for Internet "Points of
Presence" ("POP's") for deployment into residential and
other markets; and
2. Long-range strategic planning and research regarding the
addition of other services and products including:
Mobile server to provide value-added services and
products such as:
Long-distance calls over the Company's VIOP
network Global radio reception via Internet
Teleconferencing via residential POP
Text-to-speech e-mail retrieval
SECTION 3. TERM. The term of this Agreement shall continue for a minimum of
one year until December 31, 1999 and thereafter until either party hereto
terminates this Agreement by providing the other party with thirty (30) days'
written notice of its intent to terminate the Agreement. The provisions of
Section 5 of this Agreement shall survive the termination of this Agreement.
SECTION 4. INDEPENDENT CONTRACTOR STATUS. The parties expressly intend that
Consultant shall perform its duties hereunder as an independent contractor of
the Company and not as an employee. As an independent contractor, the Company
shall not be responsible for tax, employee benefit and other liabilities
relating to Consultant.
SECTION 5. CONFIDENTIAL INFORMATION; INVENTIONS. (a) the Consultant
acknowledges that (i) during the term of the Agreement, the Consultant will
be afforded access to Confidential Information; (ii) public disclosure of
such Confidential Information could have an adverse effect on the Company and
its business; (iii) because the Consultant possesses substantial technical
expertise and skill with respect to the Company's business, the Company
desires to obtain exclusive ownership of each Invention, and the Company will
be at a substantial competitive disadvantage if it fails to acquire exclusive
ownership of each Invention; and (iv) the provisions of this Section 5 are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Company with exclusive ownership
of all Inventions.
(b) All Confidential Information which the Consultant creates or
otherwise develop or which comes into its possession during the term of the
Agreement shall be and remain the exclusive property of the Company.
<PAGE>
(c) Unless authorized in writing by the Company, the Consultant will
maintain all Confidential Information in confidence and, except as necessary
in conjunction with its work for the Company, will not copy or make notes of,
divulge to anyone outside the Company or use any of the Confidential
Information for its own or another's benefit, either during or after the term
of the Agreement. The Consultant agrees that it will promptly disclose to the
Company all Confidential Information developed during the term of the
Agreement.
(d) Upon request of the Company and, in any event, upon termination
of this Agreement, any Confidential Information in the possession or under
the control of the Consultant will be promptly surrendered and delivered to
the Company.
(e) The Consultant agrees that any and all Inventions created,
developed or discovered by or for the Company, or acquired by the Company
from others, and that comes into the Consultant's knowledge or possession
during and in the course of the term of this Agreement, shall be held in
trust for the sole right and benefit of the Company and that the Consultant
shall not have any rights and shall not acquire any rights therein unless and
until the Company shall expressly and in writing waive the rights that it has
therein and thereto under the provisions of this sentence. The Consultant
further agrees (a) that any and all Inventions, created, written, developed,
furnished or produced by the Consultant during the term of the Agreement
shall be the exclusive property of the Company, and that the Consultant shall
not have any right, title or interest of any kind therein or thereto or in
and to any results or proceeds therefrom, and (b) that at any time, during
the term of this Agreement, the Consultant will (1) upon the request and at
the expense of the Company, (i) obtain patents or copyrights on, or (ii)
permit the Company to patent or copyright, any such material, whichever is
appropriate, and/or (2) at the request of the Company, execute any and all
assignments, instruments of transfer, or other documents, that the Company
deems necessary or appropriate to transfer to the Company all rights in or to
such materials or to evidence the Company's ownership of such rights or any
of them. The Consultant shall not, without limitation as to time or place,
use any Invention except on Company business during the term of the Agreement
or disclose same to any other person, firm or corporation, except for
disclosure on Company business.
SECTION 6. SOLICITATION. During the term of this Agreement, the Consultant shall
not directly or indirectly solicit any employee, consultant and/or vendor of the
Company( including, but not limited to, any software or other supplier with whom
the Company has a contractual relationship which is material to its business)
for participation in any other business that competes with the Company.
SECTION 7. COMPENSATION AND EXPENSE REIMBURSEMENT. (a) As compensation for
services rendered, Consultant shall receive the sum of $937,500 to be paid by
the Company for the period ending December 31, 1999. At the election of the
Consultant, part or all of the compensation may be due and payable in advance,
and may be paid in equivalent value of the Company's Common Stock, provided that
such Stock shall be free from all restrictions as to transferability and
marketability.
(b) Upon submission by Consultant of proper receipts and
itemized accounts, the Company shall forthwith (following itemized request by
Consultant) reimburse Consultant for all reasonable expenses properly incurred
by it in connection with the performance of its duties hereunder.
<PAGE>
SECTION 8. MISCELLANEOUS PROVISIONS.
(a) The Consultant acknowledges that the injury that would be suffered
by the Company as a result of a breach of the provisions of this Agreement would
be irreparable and that an award of monetary damages to the Company for such a
breach would be an inadequate remedy. Consequently, the Company will have the
right, in addition to any other rights it may have, to obtain injunctive relief
to restrain any breach or threatened breach or otherwise to specifically enforce
any provision of this Agreement, and the Company will be obligated to post bond
or other security in seeking such relief.
(b) This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns, heirs, and
legal representatives, including any entity with which the Company may merge or
consolidate or to which all or substantially all of its assets may be
transferred.
(c) All notices and other communications required or permitted
hereunder shall be in writing and may be personally delivered, deposited in the
United States mail (first class postage prepaid, return receipt requested),
transmitted by facsimile with a copy by United States mail (first class postage
prepaid), or sent by a private messenger or overnight courier which issues
delivery receipts, addressed to the party for whom they are intended at the
following addresses:
Address for the Company: USA Talks.com, Inc.
4350 Executive Drive, Suite 220
San Diego, CA 92121
Address for the Consultant: Roger Remillard .
250 Warwick Lane
Crystal Lake, IL 60014
Such notices and other communications shall be deemed effective upon receipt,
and in any event be deemed received five days after deposit in the U.S. mail,
one business day after the business day of transmission by facsimile, or one
business day after the business day of deposit with an overnight courier, as the
case may be.
(d) This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended orally, but only by
an agreement in writing signed by the parties hereto.
(e) This Agreement will be governed by the laws of the State of
California without regard to conflicts of laws principles.
(f) If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
<PAGE>
(g) This Agreement may be executed in one or more counterparts, each of
which will be deemed to be an original copy of this Agreement and all of which,
when taken together, will be deemed to constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
COMPANY:
USA Talks.com, Inc.
By: /s/ Allen J. Portnoy
--------------------------
Name: Allen J. Portnoy,
Chief Executive Office
CONSULTANT:
/s/ Roger Remillard
----------------------------
Roger Remillard.
<PAGE>
Exhibit 4.2
ACTION OF BOARD OF DIRECTORS
USA TALKS.COM, INC.
AUGUST 18, 1999
On notice as provided in the Company's by-laws, a Board of Directors
meeting was held on the 18th day of August 18, 1999 beginning at 4 p.m. at
the Company's offices. The following Directors were present: Allen J.
Portnoy, Stephen A. Storey, and Spencer Kissell; which constituted a quorum.
Be it resolved that Roger Remillard's consulting agreement entered
into as of January 1, 1999, is herewith ratified. Under the terms of the
agreement, Mr. Remillard shall be compensated the sum of $937,500 for a
minimum period ending December 31, 1999. At the election of Remillard, part
or all of the compensation may be due and payable in advance, and may be paid
in equivalent value of the Company's Common Stock, provided that such Stock
shall be free from all restrictions as to transferability and marketability.
Mr. Remillard has indicated in writing that he wishes to make the election to
be paid in the equivalent value of $937,500 in the Company's common stock as
of the close of trading this date. Accordingly, it is hereby resolved to
issue Mr. Remillard a total of 1,500,000 shares of stock and to proceed
immediately to register the shares pursuant to the provisions of an S-8
registration statement to be filed with the Securities and Exchange
Commission on August 19, 1999.
A fully executed copy of this resolution shall be filed in the
corporate minute book.
August 18, 1999
/s/ Allen J. Portnoy
- ---------------------------
Allen J. Portnoy, Secretary
