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As filed with the Securities and Exchange Commission on December 21, 1999
(No._____-___)
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
US WATS, Inc.
(Exact Name of Registrant as Specified in Charter)
New York 22-2055962
(State or Other Jurisdiction (I.R.S. Employer Identification Number)
of Incorporation or Organization)
2 Greenwood Square
3331 Street Road, Suite 275
Bensalem, Pennsylvania 19020
(Address, including zip code, of registrant's principal executive offices)
US WATS, Inc. 1999 Stock Option Plan
(Full Title of the Plan)
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David B. Hurwitz
President and Chief Executive Officer
US WATS, Inc.
2 Greenwood Square
3331 Street Road, Suite 275
Bensalem, Pennsylvania 19020
(215) 244-3433
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Michael H. Friedman, Esq.
Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered (1) offering price per aggregate offering registration fee
registered share (2) price (2)
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<S> <C> <C> <C> <C>
Common Stock 3,000,000 $1.8595 $5,578,500.00 $1,472.72
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</TABLE>
(1) In addition, pursuant to Rule 416 (a) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of additional shares
which may be necessary to adjust the number of shares reserved for issuance
pursuant to the US WATS, Inc. 1999 Stock Option Plan for any future stock split,
stock dividend or similar adjustment of the outstanding Common Stock of the
registrant.
(2) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee based on the average of the high and low prices of the Common
Shares as reported on the National Association of Securities Dealers, Inc.
Automated Quotation System on December 14, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The Securities and Exchange Commission allows us to "incorporate by
reference" information we file with it, which means that we can disclose
important information by referring to those documents. The information
incorporated by reference is considered to be a part of this registration
statement, and information that we file later with the Securities and Exchange
Commission will automatically update and, if applicable, supersede this
information. We incorporate by reference the documents listed below:
(a) Our Annual Report on Form 10-K for the year ended December 31, 1998;
(b) Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999; June 30, 1999; and September 30, 1999;
(c) Our Current Reports on Form 8-K filed February 19, 1999; March 16,
1999; June 29, 1999; September 16, 1999; and December 8, 1999;
(d) The description of our common shares contained in our registration
statement on Form S-8 (File No. 33-97558) filed October 7, 1993,
including any amendments or reports filed for the purposes of updating
such description; and
(e) All documents filed by us pursuant to Section 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective
amendment, which indicates that all securities offered pursuant to this
registration statement have been sold or which deregisters all
securities then remaining unsold.
Item 4. Description of Securities
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The Common Stock, which is the class of securities offered pursuant to this
Registration Statement, is registered under the Securities Exchange Act of 1934.
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Item 5. Interests of Named Experts and Counsel
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Not Applicable
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Certificate of Incorporation of US WATS, Inc. ("USW") provides for the
personal liability of its directors to be eliminated to the fullest extent
permitted by applicable law. Under the New York Business Corporation Law
("NYBCL"), a corporation may limit the personal liability of a director to the
corporation or its shareholders for damages for any breach of duty in such
capacity, except for the liability of any director if a judgment or other final
adjudication adverse to him establishes that (i) his acts or omissions were in
bad faith or involved intentional misconduct or a knowing violation of law;
(ii) he personally gained in fact a financial profit or other advantage to which
he was not legally entitled; or (iii) his acts were in violation of certain
provisions concerning dividends, distributions or loans to directors.
As authorized under the NYBCL, USW's By-Laws require USW to indemnify, and
advance or promptly reimburse upon request the expenses of, each person made or
threatened to be made a party to any action or proceeding, whether civil or
criminal, by reason of the fact that such person or such person's testator or
intestate is or was a director of USW against judgments, fines (including excise
taxes assessed on a person with respect to an employee benefit plan), penalties,
amounts paid in settlement and reasonable expenses, including attorney's fees,
actually and necessarily incurred in connection with such action or proceeding,
or any appeal therein, provided that no such indemnification shall be made if a
judgment or other final adjudication adverse to such person establishes that his
conduct did not meet the then applicable standards, and provided further that no
such indemnification shall be required with respect to any settlement or other
nonadjudicated disposition of any threatened or pending action or proceeding
unless USW has given its prior consent to such settlement or other disposition,
which consent shall not be unreasonably withheld. No repeal or amendment of the
relevant By-Laws shall apply or have any effect on the indemnification of, or
advancement of expenses to, any director of USW for or with respect to acts or
omissions of such director occurring prior to such repeal or amendment.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
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Item 8. Exhibits
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Exhibit No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Deloitte & Touche LLP
23.2 The consent of counsel is contained in the opinion filed
as Exhibit 5.1 hereto
24 Power of Attorney (included on the signature page to the
registration statement)
Item 9. Undertakings
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(a) USW 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 and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement;
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(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; and
(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) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of USW'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; and
(c) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of USW pursuant to the foregoing provisions, or otherwise, USW has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 USW 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, USW 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 of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, USW certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized in Bensalem,
Pennsylvania on this 21st day of December, 1999.
US WATS, Inc.
By: /s/ David B. Hurwitz
---------------------------------------------
David B. Hurwitz
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of David B. Hurwitz and James M. Rossi his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and 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 attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agent or either of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on behalf
of USW and in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ David B. Hurwitz President and Chief Executive Officer December 21, 1999
- ---------------------- (Principal Executive Officer)
David B. Hurwitz
/s/ Murray Goldberg Director December 21, 1999
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Murray Goldberg
/s/ Artie Regan Director and Secretary December 21, 1999
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Artie Regan
/s/ Walt Anderson Director December 21, 1999
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Walt Anderson
/s/ James M. Rossi Director December 21, 1999
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James M. Rossi
/s/ Dominic J. Romano Director December 21, 1999
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Dominic J. Romano
/s/ Michael McAnulty Chief Financial Officer December 21, 1999
- ---------------------- (Principal Financial and Accounting
Michael McAnulty Officer)
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<PAGE>
Index of Exhibits
Exhibit No. Description
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5.1 Opinion of Pepper Hamilton LLP
23.1 Consent of Deloitte & Touche LLP
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Exhibit 5.1
[Pepper Hamilton LLP Letterhead]
US WATS, Inc.
2 Greenwood Square
3331 Street Road, Suite 275
Bensalem, Pennsylvania 19020
December 21, 1999
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 (the
"Registration Statement") of US WATS, Inc., a New York corporation (the
"Company"), to be filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the offering and sale by the Company of up to
3,000,000 shares of common stock, $0.001 par value per share (the "Shares"), of
the Company pursuant to the Company's 1999 Stock Option Plan (the "Plan").
In this connection, we have examined the Registration Statement,
including the exhibits thereto, the originals or copies, certified or otherwise
identified to our satisfaction, of the Certificate of Incorporation and the By-
Laws of the Company as amended to date, and such other documents and corporate
records relating to the Company as we have deemed appropriate for the purpose of
rendering the opinion expressed herein. In rendering the opinion expressed
below, we have assumed that the Shares issued pursuant to the Plan plus other
issued and outstanding shares of the Company's common stock, $0.001 par value
per share, do not exceed the number of shares of the Company's common stock,
$0.001 par value per share, that are authorized under the Company's Certificate
of Incorporation. The opinion expressed herein is based exclusively on the
applicable provisions of the New York Business Corporation Law and federal
securities laws as in effect on the date hereof.
On the basis of the foregoing, we are of the opinion that the Shares,
when issued and paid for in accordance with the Plan, will be legally issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By providing such consent, we do not admit that we come
within the categories of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Pepper Hamilton LLP
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PEPPER HAMILTON LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated March 30, 1999, appearing in the annual report
of US WATS, Inc. for the year ended December 31, 1998 on Form 10-K.
/s/ DELOITTE & TOUCHE LLP
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Philadelphia, Pennsylvania
December 20, 1999
