SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
YIFAN COMMUNICATIONS, INC.
(Exact name of Registrant as specified in charter)
DELAWARE 34-1692323
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
41-60 Main Street, Suite 210
Flushing, Queens, New York 11355
(Address of principal executive offices) (Zip Code)
AMENDED YEAR 2000 INCENTIVE STOCK PLAN
NON EMPLOYEE DIRECTORS' STOCK OPTION PLAN
CONTRACTUAL COMPENSATORY STOCK GRANTS
(Full title of the Plan)
Sally A. Fonner, Secretary
Yifan Communications, Inc.
1612 North Osceola
Clearwater, Florida 33755
(address of agent for service)
(727) 443-3434
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED (1) REGISTERED PER SHARE (2) OFFERING (1) FEE
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<S> <C> <C> <C> <C>
Common Stock underlying Amended
Year 2000 Incentive Stock Plan (3) 1,500,000 $6.80 $10,200,000 $3,517.24
Common Stock underlying Non-Employee
Directors' Stock Option Plan (4) 500,000 6.80 3,400,000 1,172.41
Contractual Compensatory Stock Grants 540,000 0.89 400,500 138.10
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Totals 2,040,000 $14,000,500 $4,827.75
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<FN>
(1) Pursuant to Rule 416, this Registration Statement also covers such number
of additional shares of Common Stock as may become available for issuance
in the event of certain changes in outstanding shares, including
reorganizations, recapitalizations, stock splits, stock dividends and
reverse stock splits.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of computing the
registration fee and based upon the price at which the options may be
exercised.
(3) Includes all shares of Common Stock issuable pursuant to the Amended Year
2000 Incentive Stock Plan, which permits issuance of Common Stock through
various incentive awards.
(4) Includes all shares of Common Stock issuable pursuant to the Non-employee
Directors' Stock Option Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information concerning the Amended Year
2000 Incentive Stock Plan, the Non-employee Directors' Stock Option Plan and the
Contractual Compensatory Stock Grants of Yifan Communications, Inc. (the
"Company"), required by Item 1 of Form S-8 and the statement of availability of
Registrant Information, Plan Information, and other information required by Item
2 of Form S-8 will be sent or given to participants as specified by Rule 428
under the Securities Act of 1933, as amended ("Securities Act"). In accordance
with Rule 428 and the requirements of Part I of Form S-8, such documents are not
being filed with the Securities and Exchange Commission (the "Commission")
either as part of this Registration Statement on Form S-8 ("Registration
Statement") or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. The Registrant shall maintain a file of such documents
in accordance with the provisions of Rule 428. Upon request, the registrant
shall furnish to the Commission or its staff a copy or copies of all of the
documents included in such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The contents of the following documents filed with the Commission by
Yifan Communications, Inc., a Delaware corporation formerly known as Smart Games
Interactive, Inc. are incorporated by reference into this Registration Statement
by reference and shall be deemed to be a part thereof:
(a) The Annual Report on Form 10-KSB filed by Smart Games Interactive,
Inc. for the year ended December 31, 1999.
(b) The following 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 ended December 31, 1999:
(i) The Quarterly Report on Form 10-QSB filed by Smart Games
Interactive, Inc. for the 3-month period ended March 31,
2000
(ii) The Quarterly Report on Form 10-QSB filed by Yifan
Communications, Inc. for the 3- and 6-month periods ended
June 30, 2000
(iii) The Current Report on Form 8-K filed by Smart Games
Interactive, Inc. on April 17, 2000
(iv) The Current Report on Form 8-K filed by Yifan
Communications, Inc. on July 31, 2000
(v) The Current Report on Form 8-K filed by Yifan
Communications, Inc. on August 17, 2000
(vi) The Current Report on Form 8-K filed by Yifan
Communications, Inc. on September 25, 2000
(vii) The Information Statement Pursuant to Section 14(f) of the
Securities Exchange Act of 1934 and Rule 14f-1 Thereunder
filed by Yifan Communications, Inc. on August 2, 2000
(viii) The Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934 and Regulation 14C
Thereunder filed by Yifan Communications, Inc. on September
1, 2000
(c) Not applicable.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to 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 herein by reference and to be a part hereof from the
date of filing of such documents. The Company will provide, without charge, each
participant in the 1997 Compensatory Stock Grant and each participant in the
1999 Compensatory Stock Grants, upon written or oral request directed to the
Company's Secretary at the Company's executive offices, a copy (without exhibits
thereto other than exhibits which are specifically incorporated herein by
reference) of any or all documents incorporated by reference to this Item 3.
ITEM 4. DESCRIPTION OF SECURITIES.
Authorized Stock
The authorized capital stock of the Company consists of 100,000,000
shares of $0.008 par value Common Stock and 10,000,000 shares of $0.008 par
value Preferred Stock. The Preferred Stock may be issued in one or more series
as determined by the Board of Directors, and the board is authorized to fix the
rights, preferences, privileges and restrictions of any such series. The Board
of Directors may, without stockholder approval, provide for the issuance of
Preferred Stock that could have voting, conversion or other rights superior to
the rights of holders of Common Stock and such an action could have the effect
of delaying or preventing a change in control of the Company. At the date of
this Registration Statement (after giving pro forma effect to the reverse split
described in the Company's Information Statement Pursuant to Section 14(c) of
the Securities Exchange Act of 1934 and Regulation 14C Thereunder dated
September 1, 2000) approximately 12,987,000 shares of Common Stock are issued
and outstanding and 2,040,000 shares of Common Stock are reserved for issuance
in connection with the Amended Year 2000 Incentive Stock Plan, the Non-employee
Directors' Stock Option Plan and the Contractual Compensatory Stock Grants. No
shares of Preferred Stock are outstanding. All issued and outstanding Common
Stock of the Company is fully paid and nonassessable.
Common Stock
Holders of shares of Common Stock are entitled to one vote per share on
all matters submitted to a vote of the stockholders of the Company. Except as
may be required by applicable law, holders of shares of Common Stock will not
vote separately as a class, but will vote together with the holders of
outstanding shares of other classes of capital stock. There is no right to
cumulate votes for the election of directors. A majority of the issued and
outstanding shares of Common Stock constitutes a quorum at any meeting of
stockholders and the vote by the holders of a majority of the outstanding shares
is required to effect certain fundamental corporation changes such as
liquidation, merger or amendment of the Certificate.
Holders of shares of Common Stock are entitled to receive dividends,
if, as, and when declared by the Board of Directors out of funds legally
available therefor, after payment of dividends required to be paid on any
outstanding shares of Preferred Stock. Upon liquidation of the Company, holders
of shares of Common Stock are entitled to share ratably in all assets of the
Company remaining after payment of liabilities, subject to the liquidation
preferences rights of any outstanding shares of Preferred Stock. Holders of
shares of Common Stock have no conversion, redemption or preemptive rights. The
rights of the holders of Common Stock will be subject to, and may be adversely
affected by, the rights of the holders of Preferred Stock. The outstanding
shares of Common Stock are fully paid and nonassessable.
Preferred Stock
Under the Company's Certificate, the Board of Directors has the power,
without further action by the holders of the Common Stock, to designate the
relative rights and preferences of the Company's Preferred Stock, when and if
issued. Such rights and preferences could include preferences as to liquidation,
redemption and conversion rights, voting rights, dividends or other preferences,
any of which may be dilutive of the interest of the holders of the Common Stock.
The issuance of the Preferred Stock may have the effect of delaying or
preventing a change in control of the Company and may have an adverse effect on
the rights of the holders of Common Stock.
The Board of Directors may, without further action by the stockholders
of the Company, issue shares of Preferred Stock in one or more series and fix
the rights and preferences thereof, including the dividend rights, dividend
rates, conversion rights, voting rights, terms of redemption (including sinking
fund provisions), liquidation preferences and the number of shares constituting
any series. The rights of holders of Common Stock will be subject to, and may be
adversely affected by, the rights of holders of Preferred Stock. While the
issuance of Preferred Stock provides desired flexibility in connection with
additional financing, possible acquisitions and other corporate purposes, future
issuances may have the effect of delaying, deferring or preventing the change of
control of the Company without further action by the Shareholders and may
discourage bids for the Common Stock at a premium over the market price.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The law firm of Petersen & Fefer, legal counsel for the Company in
connection with this registration statement and other matters is entitled to
receive 360,000 shares of Common Stock as compensation for legal services
rendered. All such shares have been included in and registered by this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation and
By-laws are intended to take full advantage of the enabling provisions of the
General Corporation Law of the State of Delaware ("GCLD") with respect to
limiting the personal liability of its officers, directors, employees and
agents. The Amended and Restated Certificate of Incorporation and By-laws
provide that the Company may indemnify current and former directors, officers,
employees and agents, and persons serving in similar capacities in the
subsidiaries or other entities in which the Company has an interest to the
fullest extent permitted by the GCLD. Thus, the Company may be prevented from
recovering damages for certain alleged errors or omissions by the officers and
directors of the Company. Under the Company's By-laws, indemnification payments
may only be made upon a determination that the indemnified person acted in good
faith and in a manner such person reasonably believed to be in, or not opposed
to, the best interests of the Company and, with respect to a criminal
proceeding, had no reasonable cause to believe such conduct was unlawful. Such
determination shall be made (i) by a majority of the disinterested members of
the Board of Directors, (ii) by independent legal counsel in a written opinion,
or (iii) by the stockholders. It is the position of the SEC that exculpation
from and indemnification for liabilities arising under the Act and the rules and
regulations thereunder is against public policy and therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Certificate of Termination relating to the July 28, 2000 Amendment
to the Certificate of Incorporation of Yifan Communications, Inc.
(Incorporated by reference from the Company's Current Report on
Form 8-K dated September 25, 2000)
3.2 Amendment to the Certificate of Incorporation of Yifan
Communications, Inc. dated September 22, 2000 (Incorporated by
reference from the Company's Current Report on Form 8-K dated
September 25, 2000)
4.1 Specimen Certificate for shares of Company's $0.008 par value
Common Stock. (Incorporated by reference from the Company's
Current Report on Form 8-K dated September 25, 2000)
5.1 Opinion of Petersen & Fefer, Attorneys at Law, respecting legality
of securities being offered.
10.1 Amended Year 2000 Incentive Stock Plan of Yifan Communications,
Inc. dated August 3, 2000 (Incorporated by reference from the
Company's Current Report on Form 8-K dated September 25, 2000)
10.2 Non-employee Directors' Stock Option Plan of Yifan Communications,
Inc. dated August 14, 2000 (Incorporated by reference from the
Company's Current Report on Form 8-K dated September 25, 2000)
10.3 Employment Agreement between Yifan Communications, Inc, and Sally
A. Fonner dated July 30, 2000 (Incorporated by reference from the
Company's Current Report on Form 8-K dated August 17, 2000)
10.4 Agreement between Yifan.com, Inc and the law firm of Petersen &
Fefer dated July 3, 2000 (Incorporated by reference from the
Company's Current Report on Form 8-K dated August 17, 2000)
23.1 Consent of Want & Ender, Certified Public Accountants
23.2 Consent of Harmon & Company, Certified Public Accountants
23.3 Consent of John L. Petersen, Attorney at Law, (included in Exhibit
5.1)
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 to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) 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; and
(iii) Include any additional or changed material information on 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 registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to section 13 or section 15(g) of
the Securities Exchange Act of 1934 that are incorporated by
reference 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 will 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 the purpose 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 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
will be deemed to be the initial bona fide offering thereof.
(1) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the documents constituting the prospectus to each
participant to whom such prospectus is sent or given, a copy of the
registrant's annual report to stockholders for its last fiscal year,
unless such participant otherwise has received a copy of such report in
which case the registrant shall state in such prospectus that it will
promptly furnish, without charge, a copy of such report on written
request of the participant.
(2) The undersigned registrant hereby undertakes to transmit or cause to
be transmitted to all participants who do not otherwise receive such
material as stockholders of the registrant, at the time and in the manner
such material is sent to its stockholders, copies of all reports, proxy
statements and other communications distributed to its stockholders
generally
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the small business issuer pursuant to the foregoing provisions, or otherwise,
the small business issuer 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 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the small business issuer of expenses incurred or paid by a director,
officer or controlling person of the small business issuer 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
small business issuer 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements of filing on Form S-8 and authorized this registration
statement to be signed on its behalf by the undersigned, in the City of
Flushing, Queens, State of New York on this 25th day of September 2000.
Yifan Communications, Inc.
BY: /s/ Yifan He
--------------------------------------------------
Yifan He, Chief Executive Officer and Director
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POWER OF ATTORNEY
We, the undersigned directors and officers of Yifan Communications, Inc.,
do hereby constitute and appoint Yifan He and Jeffery Kraft, or either of them,
our true and lawful attorneys and agents, to do any and all acts and things in
our name and on our behalf in our capacities as directors and officers, and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with the filing of this
Registration Statement, including specifically without limitation, power and
authority to sign for any of us, in our names in the capacities indicated below,
any and all amendments hereto; and we do each hereby ratify and confirm all that
the said attorneys and agents, or either of them, shall do or cause to be done
by virtue hereof.
In accordance with the Requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates stated.
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Signature Title Date
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/s/ Yifan He
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Yifan He Chief Executive Officer and Director September 25, 2000
/s/ Jeffery Kraft
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Jeff Kraft Chief Financial Officer September 25, 2000
/s/ Sally A. Fonner
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Sally A. Fonner Secretary and Director September 25, 2000
/s/ Michael Yung
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Michael Yung Director September 25, 2000
/s/ Jeffery Wu
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Jeffery Wu Director September 25, 2000
/s/ Ahn Tran
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Ahn Tran Director September 25, 2000
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