U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
eConnect
(Exact Name of Registrant as Specified in its Charter)
Nevada 43-1239043
(State of Incorporation) (I.R.S. Employer ID No.)
2500 Via Cabrillo Marina, Suite 112, San Pedro, California 90731
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan
(Full title of the Plan)
Brian F. Faulkner, Esq., 3900 Birch Street, Suite 113, Newport
Beach, California 92660
(Name and address of agent for service)
(949) 975-0544
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Offering Fee
Registered Price Per Price
Share (1)
Common
Stock 1,150,000 $0.001 $1,150 $0.30
(1) This offering price per share is established under Rule
457(h)(1) pursuant to the deemed issuance price as set forth in
the Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan (see Exhibit 4.1 to this Form S-8).
Part I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
See Item 2 below.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in Part I,
Items 1 and 2, will be delivered to each of the participants in
accordance with Form S-8 and Rule 428 promulgated under the
Securities Act of 1933. The participants shall be provided a
written statement notifying them that upon written or oral
request they will be provided, without charge, (a) the documents
incorporated by reference in Item 3 of Part II of the
registration statement, and (b) other documents required to be
delivered pursuant to Rule 428(b). The statement will inform the
participants that these documents are incorporated by reference
in the Section 10(a) prospectus, and shall include the address
(giving title or department) and telephone number to which the
request is to be directed.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the
fiscal year ended December 31, 1999.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by
the Form 10-KSB referred to in (a) above.
(c) A description of the securities of the Registrant is
contained in a post effective amendment to a Form SB-2 POS filed
on September 12, 2000.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange
Act of 1934, 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 the registration
statement and to be part thereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
Other than as set forth below, no named expert or counsel was
hired on a contingent basis, will receive a direct or indirect
interest in the small business issuer, or was a promoter,
underwriter, voting trustee, director, officer, or employee of
the Registrant.
Brian F. Faulkner, Esq., counsel for the Registrant named in
this registration statement as giving an opinion on the validity
of the securities, will be receiving a total of 1,150,000 shares
of common stock pursuant to the Registrant's Amended and Restated
Non-Employee Directors and Consultants Retainer Stock Plan under
this Form S-8 in exchange for legal services previously rendered,
and to be rendered in the future, to the Registrant (400,000 of
which have been issued). These legal services consist of advice
and preparation work in connection with reports of the Registrant
filed under the Securities Exchange Act of 1934, and other
general corporate and securities work for the Registrant. Marc
R. Tow, Esq. has received 150,000 shares of common stock under
this Plan for assistance provided to Mr. Faulkner in his work for
the Registrant. George Brenner, the former independent certified
public accountant for the Registrant, who now does per diem
accounting work for the company, has received 100,000 shares of
common stock under this Plan for past work for the Registrant
subsequent to his resignation.
Item 6. Indemnification of Directors and Officers.
Limitation of Liability.
The articles of incorporation of the Registrant provide that
no Director or Officer of this company shall be liable to the
Registrant or its stockholders for any breach of fiduciary duty
as Officer or Director of this company. This provision shall not
affect liability for acts or omissions which involve intentional
misconduct, fraud, a knowing violation or law, or the payment of
dividends in violation of NRS 78.300.
Indemnification.
(a) Articles of Incorporation.
The articles of incorporation of the Registrant provide the
following with respect to indemnification:
"All expenses incurred by Officers or Directors in defending a
civil or criminal action, suit, or proceeding, must be paid by
this company as they are incurred in advance of a final
disposition of the action, suit or proceeding, upon receipt of an
undertaking by or on behalf of a Director or Officer to repay the
amount if it is ultimately determined by a court of competent
jurisdiction, that he or she did not act in good faith, and in
the manner he or she reasonably believed to be or not opposed to
the best interests of this company."
(b) Bylaws.
The bylaws of the Registrant provide the following with respect
to indemnification:
"Section 1. Definitions. For purposes of this Article,
"Indemnitee" shall mean each Director or Officer who was or is a
party to, or is threatened to be made a party to, or is otherwise
involved in, any Proceeding (as hereinafter defined), by reason
of the fact that he or she is or was a Director or Officer of
this Corporation or is or was serving in any capacity at the
request of this Corporation as a Director, Officer, employee,
agent, partner, or fiduciary of, or in any other capacity for,
another corporation, partnership, joint venture, trust, or other
enterprise. The term "Proceeding" shall mean any threatened,
pending or completed action or suit (including, without
limitation, an action, suit or proceeding by or in the right of
this Corporation), whether civil, criminal, administrative or
investigative.
Section 2. Indemnification. Each Indemnitee shall be
indemnified and held harmless by this Corporation for all actions
taken by him or her, and for all omissions (regardless of the
date of any such action or omission), to the fullest extent
permitted by Nevada law, against all expense, liability and loss
(including, without limitation, attorney fees, judgments, fines,
taxes, penalties, and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Indemnitee in connection
with any Proceeding. Indemnification pursuant to this Section
shall continue as to an Indemnitee who has ceased to be a
Director or Officer and shall inure to the benefit of his or her
heirs, executors and administrators. This Corporation may, by
action of its Board of Directors, and to the extent provided in
such action, indemnify employees and other persons as though they
were Indemnitees. The rights to indemnification as provided in
this Article shall be non-exclusive of any other rights that any
person may have or hereafter acquire under an statute, provision
of this Corporation's Articles of Incorporation or Bylaws,
agreement, vote of stockholders or Directors, or otherwise.
Section 3. Financial Arrangements. This Corporation may
purchase and maintain insurance or make other financial
arrangements on behalf of any person who is or was a Director,
Officer, employee or agent of this Corporation, or is or was
serving at the request of this Corporation in such capacity for
another corporation, partnership, joint venture, trust or other
enterprise for any liability asserted against him or her and
liability and expenses incurred by him or her in such capacity,
whether or not this Corporation has the authority to indemnify
him or her against such liability and expenses.
The other financial arrangements which may be made by this
Corporation may include, but are not limited to, (a) creating a
trust fund; (b) establishing a program of self-insurance; (c)
securing its obligation of indemnification by granting a security
interest or other lien on any of this Corporation's assets, and
(d) establishing a letter of credit, guarantee or surety. No
financial arrangement made pursuant to this section may provide
protection for a person adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be
liable for intentional misconduct, fraud, or a knowing violation
of law, except with respect to advancing expenses or
indemnification ordered by a court. Any insurance or other
financial arrangement made on behalf of a person pursuant to this
section may be provided by this Corporation or any other person
approved by the Board of Directors, even if all or part of the
other person's stock or other securities is owned by this
Corporation. In the absence of fraud:
(a) the decision of the Board of Directors as to the propriety
of the terms and conditions of any insurance or other financial
arrangement made pursuant to this section, and the choice of the
person to provide the insurance or other financial arrangement is
conclusive; and
(b) the insurance or other financial arrangement is not void or
voidable; does not subject any Director approving it to personal
liability for his action; and even if a Director approving the
insurance or other financial arrangement is a beneficiary of the
insurance or other financial arrangement.
Section 4. Contract of Indemnification. The provisions of this
Article relating to indemnification shall constitute a contract
between this Corporation and each of its Directors and Officers,
which may be modified as to any Director or Officer only with
that person's consent or as specifically provided in this
section. Notwithstanding any other provision of the Bylaws
relating to their amendment generally, any repeal or amendment of
this Article which is adverse to any Director or Officer shall
apply to such Director or Officer only on a prospective basis and
shall not limit the rights of an Indemnitee to indemnification
with respect to any action or failure to act occurring prior to
the time of such repeal or amendment. Notwithstanding any other
provision of these Bylaws, no repeal or amendment of these Bylaws
shall affect any or all of this Article so as to limit or reduce
the indemnification in any manner unless adopted by (a) the
unanimous vote of the Directors of this Corporation then serving,
or (b) the stockholders as set forth in Article XII hereof;
provided that no such amendment shall have retroactive effect
inconsistent with the preceding sentence.
Section 5. Nevada Law. References in this Article to Nevada law
or to any provision thereof shall be to such law as it existed on
the date these Bylaws were adopted or as such law thereafter may
be changed; provided that (a) in the case of any change which
expands the liability of an Indemnitee or limits the
indemnification rights or the rights to advancement of expenses
which this Corporation may provide, the rights to limited
liability, to indemnification and to the advancement of expenses
provided in this Corporation's Articles of Incorporation, these
Bylaws, or both shall continue as theretofore to the extent
permitted by law; and (b) if such change permits this
Corporation, without the requirement of any further action by
stockholders or Directors, to limit further the liability of
Indemnitees or to provide broader indemnification rights or
rights to the advancement of expenses than this Corporation was
permitted to provide prior to such change, liability thereupon
shall be so limited and the rights to indemnification and
advancement of expenses shall be so broadened to the extent
permitted by law."
The board of directors may from time to time adopt further bylaws
with respect to indemnification and may amend these bylaws to
provide at all times the fullest indemnification permitted by the
Nevada Revised Statutes.
(c) Nevada Revised Statutes.
NRS 78.7502 Discretionary and mandatory indemnification of
officers, directors, employees and agents: General provisions.
(1) A corporation may 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 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,
partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted 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,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere 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 that his
conduct was unlawful.
(2) A corporation may 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 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, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement
and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit
if he acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation. Indemnification may not be made for any claim, issue
or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the corporation or for amounts paid in
settlement to the corporation, unless and only to the extent that
the court in which the action or suit was brought or other court
of competent jurisdiction determines upon application that in
view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for such expenses as the
court deems proper.
(3) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in subsections 1 and 2, or in defense of any claim, issue or
matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense.
NRS 78.751 Authorization required for discretionary
indemnification; advancement of expenses; limitation on
indemnification and advancement of expenses.
(1) Any discretionary indemnification under NRS 78.7502
unless ordered by a court or advanced pursuant to subsection 2,
may be made by the corporation only as authorized in the specific
case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances. The
determination must be made:
(i) By the stockholders;
(ii) By the board of directors by majority vote of a quorum
consisting of directors who were not parties to the action, suit
or proceeding;
(iii) If a majority vote of a quorum consisting of directors
who were not parties to the action, suit or proceeding so orders,
by independent legal counsel in a written opinion; or
(iv) If a quorum consisting of directors who were not
parties to the action, suit or proceeding cannot be obtained, by
independent legal counsel in a written opinion.
(2) The articles of incorporation, the bylaws or an
agreement made by the corporation may provide that the expenses
of officers and directors incurred in defending a civil or
criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an
undertaking by or on behalf of the director or officer to repay
the amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any
rights to advancement of expenses to which corporate personnel
other than directors or officers may be entitled under any
contract or otherwise by law.
(3) The indemnification and advancement of expenses
authorized in NRS 78.7502 or ordered by a court pursuant to this
section:
(i) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under
the articles of incorporation or any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, for either
an action in his official capacity or an action in another
capacity while holding his office, except that indemnification,
unless ordered by a court pursuant to or for the advancement of
expenses made pursuant to subsection 2, may not be made to or on
behalf of any director or officer if a final adjudication
establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was
material to the cause of action.
(ii) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the
heirs, executors and administrators of such a person.
NRS 78.752 Insurance and other financial arrangements against
liability of directors, officers, employees and agents.
(1) A corporation may purchase and maintain insurance or
make other financial arrangements on behalf of any person who 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,
partnership, joint venture, trust or other enterprise for any
liability asserted against him and liability and expenses
incurred by him in his capacity as a director, officer, employee
or agent, or arising out of his status as such, whether or not
the corporation has the authority to indemnify him against such
liability and expenses.
(2) The other financial arrangements made by the corporation
pursuant to subsection 1 may include the following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
(iii) The securing of its obligation of indemnification
by granting a security interest or other lien on any assets of
the corporation.
(iv) The establishment of a letter of credit, guaranty
or surety.
No financial arrangement made pursuant to this subsection may
provide protection for a person adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be
liable for intentional misconduct, fraud or a knowing violation
of law, except with respect to the advancement of expenses or
indemnification ordered by a court.
(3) Any insurance or other financial arrangement made on behalf
of a person pursuant to this section may be provided by the
corporation or any other person approved by the board of
directors, even if all or part of the other person's stock or
other securities is owned by the corporation.
(4) In the absence of fraud:
(i) The decision of the board of directors as to the
propriety of the terms and conditions of any insurance or other
financial arrangement made pursuant to this section and the
choice of the person to provide the insurance or other financial
arrangement is conclusive; and
(ii) The insurance or other financial arrangement:
(A) Is not void or voidable; and
(B) Does not subject any director approving it to personal
liability for his action, even if a director approving the
insurance or other financial arrangement is a beneficiary of the
insurance or other financial arrangement.
(5) A corporation or its subsidiary which provides self-
insurance for itself or for another affiliated corporation
pursuant to this section is not subject to the provisions of
Title 57 of NRS.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this 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;
(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.
(b) 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 section 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.
(e) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest
annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting
the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial
information
(h) That 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.
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 filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorize, in the City
of San Pedro, State of California, on September 26, 2000.
eConnect
By: /s/ Thomas S. Hughes
Thomas S. Hughes
President/Chief Executive Officer
Special Power of Attorney
The undersigned constitute and appoint Thomas S. Hughes their
true and lawful attorney-in-fact and agent with full power of
substitution, 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 Form S-8 Registration
Statement, and to file the same with all exhibits thereto, and
all documents in connection therewith, with the U.S. Securities
and Exchange Commission, granting such attorney-in-fact the 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 and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorney-in-fact 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 by the following persons
in the capacities and on the date indicated:
Signature Title Date
/s/ Thomas S. Hughes President/Chief Executive September 26, 2000
Thomas S. Hughes Officer/ Director
/s/ Jack M. Hall Secretary/Director September 26, 2000
Jack M. Hall
/s/ Diane Hewitt Treasurer (Principal September 26, 2000
Diane Hewitt Financial and Accounting
Officer)/Director
/s/ Laurence Donoghue Director September 26, 2000
Laurence Donoghue
EXHIBIT INDEX
Exhibit Description
No.
4.1 Amended and Restated Non-Employee Directors and Consultants
Retainer Stock Plan (Amendment No. 2), dated September 1, 2000
(incorporated by reference to Exhibit 4.2 of the Form S-8 filed
on September 12, 2000).
4.2 Consulting Services Agreement between the Registrant and Jim
Pugh, dated September 12, 2000 (see below).
4.3 Consulting Services Agreement between the Registrant and
Darrel Dixon, dated September 14, 2000 (see below).
4.4 Consulting Services Agreement between the Registrant and
Robert Graham, dated September 14, 2000 (see below).
4.5 Consulting Services Agreement between the Registrant and
Nathaniel Adams, dated September 18, 2000 (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountant (see below).
23.2 Consent of Counsel (see below).
24 Special Power of Attorney (see signature page).
