<PAGE>
As filed with the Securities and Exchange Commission on March 16, 1999.
Registration No. __________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACT TELECONFERENCING, INC.
(Exact name of the Registrant as specified in its charter)
Colorado 84-1132665
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or
organization)
1658 Cole Boulevard, Suite 130
Golden, Colorado 80401
(303) 233-3500
(Address and telephone number
of principal executive offices)
Gavin J. Thomson
1658 Cole Boulevard, Suite 130
Golden, Colorado 80401
(303) 235-9000
(Name, address, and telephone number
of agent for service)
Copy to:
William J. Campbell
Benjamin M. Chin
Faegre & Benson LLP
2500 Republic Plaza
370 Seventeenth Street
Denver, Colorado 80202
(303) 592-9000
____________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the registration statement becomes effective.
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____________________
If the only securities being registered on this Form are to be offered under
dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis under Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this Form is filed to register additional securities for an offering under
Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed under Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. / /
If delivery of the prospectus is expected to be made under Rule 434, please
check the following box. / /
Calculation of Registration Fee
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Proposed
Proposed maximum
Title of Amount maximum aggregate Amount of
securities to to be offering price per offering registration
be registered registered unit or share price fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of common stock, no
par value 131,210 $5.25 $688,852.50 $191.50
- -------------------------------------------------------------------------------------------------
</TABLE>
The registrant hereby amends this registration statement on the date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective under Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become effective on the
date as the Commission, acting under Section 8(a), may determine.
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PROSPECTUS
ACT TELECONFERENCING, INC.
131,210 shares of common stock
Under a Share Purchase Agreement dated as of September 30, 1998, we
acquired 100% of the shares of Advanced Multipoint Conferencing, Inc., Advanced
Multipoint, an Ottawa teleconferencing services company, for cash and by issuing
112,710 shares of our common stock. This prospectus relates to the registration
of the 112,710 shares and an additional 18,500 of our shares, collectively
referred to as the shares, issued to Intrepid Communications, LLC under a
Services Agreement dated as of January 18, 1999. We will not receive any cash
for the 131,210 shares.
<TABLE>
<CAPTION>
Per Share Total
----------------------------
<S> <C> <C> <C>
Offering Price
common stock 112,710 $5.25 $591,727.50
common stock 18,500 $5.25 $ 97,125.00
Commissions None None
Proceeds to ACT $5.25 $688,852.50*
</TABLE>
*Before deducting expenses
NASDAQ SmallCap Market Trading Symbols:
ACTT (common stock)
_______________________
This investment involves a high degree of risk. You should purchase shares
only if you can afford a complete loss. See "Risk Factors" beginning on page 4.
The Securities and Exchange Commission or any state securities commission
has not approved or disapproved these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_______________________
Dated March 16, 1999
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TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
PAGE
<S> <C>
RISK FACTORS.............................................................. 4
INFORMATION INCORPORATED BY REFERENCE..................................... 9
ACT AND RECENT DEVELOPMENTS............................................... 10
THE TRANSACTION........................................................... 11
FORWARD-LOOKING INFORMATION............................................... 12
USE OF PROCEEDS........................................................... 12
PLAN OF DISTRIBUTION...................................................... 13
DESCRIPTION OF SECURITIES................................................. 13
LEGAL MATTERS............................................................. 13
EXPERTS................................................................... 13
INDEMNIFICATION........................................................... 13
</TABLE>
We have not authorized any dealer, salesperson, or other person to give any
information or represent anything not contained in this prospectus. You should
not rely on any unauthorized information. This prospectus does not offer to
sell or buy any shares in any jurisdiction in which it is unlawful. The
information in this prospectus is current as of the date on the cover.
RISK FACTORS
You should consider carefully the following risk factors, along with the
other information contained or incorporated by reference in this prospectus, in
deciding whether to invest in our shares. These factors, among others, may
cause actual results, events, or performance to differ materially from those
expressed in any forward-looking statements made in this prospectus.
WE FACE INTENSE COMPETITION IN THE TELECONFERENCING INDUSTRY BECAUSE OF THE EASE
OF MARKET ENTRY AND THE RAPID TECHNOLOGICAL ADVANCES BY COMPETITORS.
The teleconferencing industry is highly competitive. Competition in our
markets is based primarily on quality, service, and price. To compete
successfully against other teleconferencing providers, we must be able to
maintain competitive pricing while at the same time offer high quality services
and related products. Competition in our markets may result in pricing pressures
that may adversely affect the prices and sales levels of our teleconferencing
services and related products. Teleconferencing equipment and bridges are widely
available at relatively affordable prices. There are few regulatory barriers to
competition in the United States. Until recently, local exchange carriers,
including local telephone companies, were prohibited from providing audio
teleconferencing, except in limited areas. The United States Congress recently
passed legislation that permits local exchange carriers to offer
teleconferencing services. This legislation permits additional competition if
some or all of the local exchange carriers choose to enter or expand their
activities in the teleconferencing market in the United States. In addition,
existing competitors can be expected to expand their services and new
competitors are likely to be encountered. There are no significant regulatory
barriers to market entry in the United Kingdom, the Netherlands, France,
Belgium, Canada, or Australia. Barriers to entry in other foreign markets vary,
but may
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involve governmental regulation or government-owned telephone systems resistant
to competition with independent teleconferencing companies. Many of our
competitors have substantially greater capital resources and name recognition
than we do. There is no assurance that we will be able to compete against our
competitors and potential competitors in terms of research and development,
manufacturing, marketing, and sales.
WE DEPEND ON THE ACCEPTANCE OF VIDEO CONFERENCING THAT REQUIRES ISDN TELEPHONE
SERVICE, WHICH IS NOT UNIVERSALLY AVAILABLE AND IS MORE EXPENSIVE.
High quality videoconferencing generally requires Integrated Services
Digital Network, ISDN, telephone service. ISDN telephone service is technically
acceptable but is not yet universally available in the United States and is
generally higher priced than ordinary telephone service. We have entered the
video conferencing market with the offering of a video conferencing and video
bridging system, ActionView, that we believe is priced competitively to
comparable service offerings. We distribute videoconferencing products in the
United States under the Tandberg brand name and under the Picturetel and RSI
brand names in Europe. There can be no assurance that the videoconferencing
systems or services we offer will achieve significant market acceptance; that
competitors will not market similar services at prices more competitive than our
product; or that potential customers will have access to ISDN telephone services
at rates which facilitate their purchase.
WE HAVE SUSTAINED LOSSES IN THE PAST AND WE EXPECT TO SUSTAIN LOSSES IN THE
FUTURE.
Despite a continuing trend of strong revenue growth, we have incurred net
losses in all years from inception in 1990, except for the fiscal year ending
December 31, 1993 (data before 1993 and for December 31, 1998 is unaudited):
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
ACCOUNTING PERIOD NET REVENUES REVENUE NET INCOME (LOSS)
GROWTH RATE
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
December 31, 1990 $ 153,000 --
- --------------------------------------------------------------------------------
December 31, 1991 $ 435,000 184% ($ 101,000)
- --------------------------------------------------------------------------------
December 31, 1992 $ 954,000 119% ($ 77,000)
- --------------------------------------------------------------------------------
December 31, 1993 $ 1,582,000 66% $ 26,000
- --------------------------------------------------------------------------------
December 31, 1994 $ 2,483,000 57% ($ 253,000)
- --------------------------------------------------------------------------------
December 31, 1995 $ 3,461,000 39% ($ 424,000)
- --------------------------------------------------------------------------------
December 31, 1996 $ 6,220,000 80% ($1,208,000)
- --------------------------------------------------------------------------------
December 31, 1997 $10,234,000 65% ($ 437,000)
- --------------------------------------------------------------------------------
December 31, 1998 $19,010,000 86% ($2,036,000)
- ------------------------------------------------------------------------------
</TABLE>
We incurred a net loss of $2,036,000 for 1998, primarily as the result of
budgeted developmental expenses and start up costs incurred in opening new
offices overseas, meeting our obligations under the Concert Agreement, and in
developing new business. While expenditures of this nature in previous entries
into international markets have resulted in substantial revenue growth, we have
a continuing need for additional capital to allow us to sustain growth.
Although there is no assurance that the growth will result in profitable
operations, we have achieved break-even operations before or during the third
year of operation for each of our foreign
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subsidiaries in the United Kingdom and the Netherlands. We have not yet achieved
break-even status for our offices in France and Australia that opened in 1997.
The likelihood of our success must be considered in light of the problems,
expenses, difficulties, complications, and delays encountered in connection with
the operation of a relatively new business, our expansion into new markets and
products, the financial strength and effectiveness of our competitors, the
degree to which capital is available to us, and the implementation of an
expanded marketing strategy. The expense of entry into foreign markets is front-
end intensive. Our entry into video-teleconferencing is a relatively new
activity for us and has had a significant adverse effect on our earnings. Video
conferencing will likely continue to have an adverse effect on earnings while we
attempt to develop this business segment.
OUR QUARTERLY RESULTS MAY FLUCTUATE DUE TO MARKETING AND COMPETITIVE FACTORS,
OVER WHICH WE HAVE LITTLE OR NO CONTROL.
The mobility of our customers may adversely affect our ability to generate
sufficient revenues to support our fixed costs and our growth. Teleconferencing
customers can easily switch to a competing provider or allocate their business
among several vendors. Our relatively small revenue base makes us susceptible
to significant fluctuations in revenues from any single purchaser of our
services. Our three largest customers accounted for following percentages of
revenues:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------
Customer 1 Customer 2 Customer 3
---------------------------------------------------------------------------
<S> <C> <C> <C>
1996 10.9% 10.5% 7.2%
---------------------------------------------------------------------------
1997 23.7% 6.6% 3.1%
---------------------------------------------------------------------------
1998 21.1% 5.1% 3.0%
---------------------------------------------------------------------------
</TABLE>
Some of our largest customers operate numerous business locations each of
which makes teleconferencing decisions independently of other locations. We
believe this factor tempers the risk involved in drawing significant revenues
from the same client
THE SUCCESS OF OUR PLANS TO EXPAND AND TO ENTER INTERNATIONAL MARKETS MAY BE
LIMITED OR DISRUPTED BECAUSE WE MAY NOT BE ABLE TO OBTAIN SUFFICIENT FINANCING.
We have no assurance that major long-term financing will be available as
and when needed. Many of our current and prospective domestic and
international customers utilize teleconferencing services for both local and
long-distance teleconferencing, and for reasons of cost and convenience often
prefer to do business with a teleconferencing office that is available locally
to their central offices. To compete for the customers, we may be required to
establish a local presence and install bridge equipment in additional North
American, European, and Asia-Pacific cities. Since we expect to experience
startup losses from new installations until revenues associated with the
installations offset related costs, our ability to fund the costs of the
expansions will depend in large part on the availability of adequate financing.
We presently have a term loan due in May 1999, an issue of subordinated debt due
in 2003, and a number of capitalized leases due at various times through 2003.
We depend on timely payment of accounts by our customers to finance ongoing
operations; delays in payment may adversely affect our ability to pay our
accounts when due.
Rather than establishing a new office and installing a new bridge in select
cities, we may, in appropriate circumstances, seek to acquire an existing
provider of teleconferencing services in these cities, and may seek to do so by
the issuance of common stock instead of, or in combination with, a cash purchase
or investment. In October 1998, we acquired 100% of the stock of Advanced
Multipoint in Ottawa. We have no present agreements or arrangements for the
acquisition of other teleconferencing businesses, but we continually explore the
possibility of acquisitions and are investigating entry into the Hong Kong, and
Germany markets. If all or any part of the consideration for an acquisition
consists of our stock, the acquisition could result in substantial additional
dilution to purchasers in this offering. Moreover, if we were to seek to raise
additional capital through the sale of additional common stock and/or warrants
(or preferred stock that is convertible to common stock), at some future
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date, we may be required to do so at a price per share that is less than the
price of the shares offered in this prospectus. Future sales of common stock
could result in substantial additional dilution to investors purchasing the
shares in this offering.
WE MAY NOT BE ABLE TO RETAIN OUR KEY EXECUTIVES, AND WE MAY NOT BE ABLE TO HIRE
ENOUGH ADDITIONAL TECHNICAL PERSONNEL TO MEET OUR NEEDS.
While we employ a number of key personnel, we are dependent on the services
of Gerald D. Van Eeckhout. Although we maintain a key-employee life insurance
policy on Mr. Van Eeckhout, our Chairman, there is no assurance the proceeds
from the insurance would be adequate to identify and employ his successor and to
compensate us for the loss of his services.
The design, engineering, and repair of teleconferencing equipment and
networks is a highly technical enterprise, and we must continue to locate and
employ technically qualified contractors and/or employees, who may command
premium compensation, to install, maintain, and repair the equipment and
networks. If sufficiently qualified persons cannot be found and employed on a
timely basis as we seek to expand our operations, our expansion may be delayed
or our operations otherwise adversely affected.
WE MAY NOT BE ABLE TO EFFECTIVELY REACT AND ADAPT TO THE RAPID TECHNOLOGICAL
CHANGES CHARACTERISTIC OF THE TELECONFERENCING INDUSTRY.
Technological innovations, such as computer-based bridging equipment, have
enabled us to engage in the teleconferencing services business. These
innovations are likely to continue and there can be no assurance that we will be
able to react and adapt to these changes should they develop, that equipment or
software innovations would be available to us at a reasonable price in the
future, or that competitors' developments will not render our services obsolete.
Although we recently upgraded our bridging equipment to provide state-of-the-art
audio teleconferencing technology, which has been augmented to provide data
teleconferencing and video teleconferencing, rapid technological changes in the
teleconferencing industry may render our bridging or other teleconferencing
equipment obsolete or require our substantial additional investment to remain
competitive. There can be no assurance the technical innovations would be
available to us at a reasonable price, if at all, or that we would be able to
respond adequately to the technical innovations. These events could have a
material adverse effect on us.
OUR SYSTEMS MAY NOT BE YEAR 2000 COMPLIANT WHICH COULD CAUSE OUR COMPUTERS TO BE
UNAVAILABLE FOR A PERIOD OF TIME AFTER DECEMBER 31, 1999, CREATING A NEGATIVE
IMPACT ON OUR BUSINESS, OPERATING, AND FINANCIAL RESULTS.
As the Year 2000 approaches, many date sensitive computer applications may
fail because they are unable to process dates properly beyond December 31, 1999.
Businesses will be required to devote significant resources to convert their
information systems to meet Year 2000 requirements. We believe that our
internal systems are Year 2000 compliant. However, we are significantly
dependent upon external or third parties including electrical utilities,
telecommunications, banking and financial services, airlines, and governmental
agencies and institutions to provide services to us and to purchase services
from us. Their failure to provide services to us due to Year 2000 problems
could have a material adverse effect on our business, results of operations, and
financial condition. Additionally, as these entities devote financial
resources to comply with Year 2000 requirements, the purchasing patterns of our
customers may be affected as they may have reduced funds available to purchase
our services, which could result in a material adverse effect on our business,
results of operations, and financial condition.
7
<PAGE>
WE DEPEND UPON RIGHTS TO TECHNOLOGY THAT WE OWN, AND THERE CAN BE NO ASSURANCE
THAT THE RIGHTS WE HAVE ARE SUFFICIENT OR THAT WE CAN ADEQUATELY PROTECT THOSE
RIGHTS.
There can be no assurance that we will be able to protect our proprietary
information, business practices, or trademarks against a competitor's use, or
that we would be successful in any litigation we might bring to protect our
proprietary information, business practices, or trademarks. We seek to protect
our proprietary information and business practices as trade secrets. We believe
our name and the "ACT" logo are unique in the teleconferencing market, but a
variety of other enterprises' common usage of the name "Act" or "ACT" makes
trademark protection in some contexts either unavailable or so likely to
generate litigation or the threat of litigation to make the pursuit of trademark
protection prohibitively expensive. The United Kingdom's Trade Marks Registry
has issued trademark certificates to us for ACT and ACTIONCALL, which we license
to ACT Teleconferencing Limited, and to ACT Teleconferencing Limited for
CONFERCALL. We hold no patents.
POLITICAL AND ECONOMIC CHANGES INCLUDING EXCHANGE RATE FLUCTUATIONS COULD REDUCE
OUR REVENUE AND COULD CREATE LOSSES IN OUR FOREIGN OPERATIONS.
Adverse political or economic developments may occur in even the most
stable political or economic climate, and there are always risks of changes,
including dramatic changes, in currency values in foreign markets. Fluctuations
in currencies could offset revenue gains from the sale of additional
teleconferencing services and/or products, or increase operating losses incurred
in these locations; however, local costs are incurred in local currencies. We
operate foreign subsidiaries in the United Kingdom, the Netherlands, France,
Australia, and Canada. In September 1998 we expanded into Canada with the
opening of a new operations facility in Toronto and in October 1998 we acquired
Ottawa's Advanced Multipoint. We are investigating the possibility of opening
offices in Germany and in Hong Kong and have incorporated but not opened a
subsidiary in Hong Kong. Our future expansion in other foreign markets will
necessarily increase our exposure to these risks.
OUR COMMON STOCK PRICE IS LIKELY TO BE HIGHLY VOLATILE.
There can be no assurance that the market price of our common stock will
not decline. The securities markets have from time to time experienced
significant price and volume fluctuations that may be unrelated to the operating
performance of particular companies. Our announcement or our competitors'
announcements of new products, developments, or disputes concerning patents or
proprietary rights, and economic and other external factors, as well as period-
to-period fluctuations in our financial results, may have a significant impact
on the market price of our common stock.
WE MAY BE REMOVED FROM THE NASDAQ SMALLCAP MARKET IF WE FAIL TO MEET ITS
MAINTENANCE CRITERIA.
Our common stock is listed on the Nasdaq SmallCap Market. However, if we
fail to meet the continuing requirements necessary to qualify for our common
stock to be quoted on the Nasdaq SmallCap Market, these securities will be
governed under various rules of the Securities and Exchange Commission relating
to "penny stocks," under the Penny Stock Reform Act of 1990. SEC rules require
broker/dealers to make a suitability determination for purchases and to obtain
the purchaser's prior written consent for a purchase transaction, thereby
restricting the ability of purchasers of shares in this offering and of
broker/dealers to sell shares of the common stock in the open market. This
restriction would likely affect adversely both the market price and liquidity
for our shares. We intend to maintain qualification for the continued quotation
of our common stock and warrants on the Nasdaq SmallCap Market after this
offering and intend to apply for listing on the Nasdaq National Market when we
meet the applicable listing criteria. There can be no assurance that we will be
able to maintain our SmallCap Market listing or obtain the Nasdaq National
Market listing.
THE INTERESTS OF OUR STOCKHOLDERS AND THE PRICE OF OUR COMMON STOCK MAY BE
ADVERSELY EFFECTED BY THE PUBLIC SALE OF A SIGNIFICANT NUMBER OF THE SHARES
ELIGIBLE FOR FUTURE SALE THROUGH THE EXERCISE OF OPTIONS AND WARRANTS.
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As of December 31, 1998, various persons, including our officers and
directors, held options and warrants to purchase a total of 1,934,364 shares of
common stock. To the extent that any options or warrants are exercised, the
interests of our shareholders may be diluted proportionately. The price which
we may receive for issuance of our common stock upon exercise of the options and
warrants may be less than the value of, or market price for, our common stock at
the time the options and warrants are exercised. While these options and
warrants are outstanding, the holders are given, at little or no cost, the
opportunity to profit from any increase in the market price of our common stock
without assuming the risk of ownership. So long as the options and warrants
remain unexercised, the terms under which we could obtain equity capital from
other sources may be adversely affected. Moreover, the holders of the options
and warrants may be expected to exercise them at a time when we would, in all
likelihood, be able to obtain needed capital from offering our securities on
terms more favorable than those the outstanding options and warrants
provide.
As of December 31, 1998, there were 3,755,783 shares of common stock
outstanding. Substantial increases in the amount of common stock outstanding as
a result of the exercise of various options and warrants could adversely affect
the market price of the common stock. Options and warrants of various types
outstanding on December 31, 1998 entitled the holders to purchase 1,934,364
shares of common stock at prices ranging from $2.00 to $9.00 per share. As long
as the exercise prices of some of these warrants and options are less than the
price at which the common stock is publicly traded, the holders have an
incentive to exercise their warrants or options, rather than purchase shares in
the public market, and, possibly, to resell them at prices that are equal to or
less than the current market price.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-3 that we
filed with the Securities and Exchange Commission. Consistent with the SEC's
rules, we omitted some information from this prospectus that is contained in the
registration statement. We file annual, quarterly, and special reports, proxy
statements and other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC's web site at http://www.sec.gov. You
may also read and copy any document we file with the SEC at its Public Reference
Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can also obtain
copies of the documents at prescribed rates by writing to the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the operation of its
Public Reference Room. Our SEC filings are also available at the office of the
National Association of Securities Dealers, Inc. For more information on
obtaining copies of our public filings at the National Association of Securities
Dealers, Inc., you should write to National Association of Securities Dealers,
Inc., 1735 K Street, N.W., Washington, D.C. 20006.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" our publicly-filed
documents into this prospectus, which means that information included in these
documents is considered part of this prospectus. Information that we file with
the SEC after the date of this prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934. The information incorporated
by reference is an important part of this prospectus and information that we
file subsequently with the SEC will automatically update this prospectus. We
incorporate by reference our:
. Form SB-2 filed with the SEC on October 10, 1995, File No.
33-97908-D.
. Form 10-QSB for the quarter ending March 31, 1996 filed with the SEC
on May 15, 1996, File No. 0-27560.
. Schedule 14A Information filed with the SEC on April 30, 1997, File
No. 0-27560.
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. Annual report on Form 10-KSB/A for the year ending December 31, 1997
filed with the SEC on March 24, 1998;
. Schedule 14A Information filed with the SEC on April 15, 1998 in
connection with our May 13, 1998 annual meeting of shareholders, File
No. 0-27560;
. Quarterly reports on Form 10-QSB for the quarters ending March 31
(filed with the SEC on May 15), June 30 (filed August 14 and amended
on August 24), and September 30, 1998 (filed November 16, 1998);
. Current reports on Form 8-K filed with the SEC on January 15, July 17,
and October 30, 1998 and January 4 and January 15, 1999;
. Form S-8 filed July 2, 1998 and Post-Effective Amendment No. 1 to Form
S-8 filed with the SEC on August 19, 1998;
. Post-Effective Amendment No. 4 to Form SB-2 filed with the SEC on
December 8, 1998; and
. Final Prospectus for Post-Effective Amendment No. 4 to Form SB-2 filed
with the SEC on January 4, 1999.
You or any beneficial owner may request a copy of these filings (other than
an exhibit to a filing unless that exhibit is specifically incorporated by
reference into that filing) at no cost, by writing to or telephoning us at the
following address:
Investor Relations Department
1658 Cole Boulevard, Suite 130
Golden, Colorado 80401
(303) 235-9000
ACT AND RECENT DEVELOPMENTS
We provide and market a broad range of high-quality audio, video and data
teleconferencing services, and distribute related teleconferencing products to
businesses and other organizations in the United States, United Kingdom,
Netherlands, Belgium, France, and Australia. We maintain operations centers in
these countries, where we have installed and operate computer-managed
telecommunications equipment known as "bridges" for conducting multiparty audio
conferences.
Our Actioncall(TM) audio teleconferencing services accommodate multiparty
conferences with a number of participants at levels of audio volume and clarity
that are not generally available on most office telephones. Audio
teleconferencing enables routine meetings, training, information distribution
and other business meetings to take place where travel makes it impractical,
inconvenient, or expensive to assemble a large group on short notice or with
regular frequency. We offer a variety of services at different price levels
depending on customer needs and business volume. Our customers include small
businesses, multinationals, law firms, accounting firms, banks, and a variety of
other businesses and entities.
Our video conferencing bridging service commenced in 1996 in the United
Kingdom. It connects video participants by means of a video multipoint control
unit under the ActionViewTM brand name. We plan to extend this
videoconferencing service to all other operations centers worldwide.
We also offer a variety of audio and video teleconferencing products
including the Tandberg, Picturetel, Polycom, and RSI brand names. These products
are competitively priced, stand-alone systems that permit individuals or small
groups to send and receive video and audio signals over digital telephone
systems. These systems comply with international standards and are connected
primarily over the Integrated Services Digital Network, ISDN, service, which is
available in most major metropolitan markets. Our audio and data
teleconferencing services can be provided over any telephone network.
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We market data teleconferencing services and software, as an adjunct to our
audio teleconferencing services, and also distribute data teleconferencing
software that permits clients to interconnect desktop computers by standard
modem to simultaneously conduct audio and data teleconferences.
We market our services and products through our North American, European,
and Asia-Pacific marketing operations. We are actively seeking opportunities
for expansion through the establishment of additional American, European, and
Asia-Pacific sales offices and operations centers.
We began handling audio teleconferencing calls for Concert Global Networks
Limited, the global teleconferencing services company owned by British
Telecommunications plc, as an outsource provider of these services during the
fourth quarter of 1998. In October 1998, we agreed to provide video
teleconferencing bridge services for customers of GTE Telephone Operating
Company and to acquire GTE's video conferencing bridging equipment.
We incorporated under the laws of Colorado in 1989, and began operations on
January 2, 1990. Through a reorganization in October 1992, we acquired all of
the outstanding shares of our related companies, which were owned by
substantially the same shareholders who owned our shares, transferred our
operating assets to our subsidiaries, and began operations as a holding
company.
In 1992 we acquired 60% of ACT Teleconferencing Limited, a majority owned
United Kingdom subsidiary, to conduct operations in the United Kingdom. In July
1995 we acquired 100% of the issued share capital of NBS, Inc., a Minnesota
corporation, and changed its name to ACT VideoConferencing, Inc. In September
1995 we began audio teleconferencing operations in continental Europe through a
wholly owned subsidiary, ACT Teleconferencing B.V., a Netherlands
corporation.
In May 1997 we formed ACT Teleconferencing (Pty) Limited, in Australia and
purchased 80% of the issued share capital. In December 1997 we acquired 80% of
the issued shares of Multimedia and Teleconferencing Solutions, Limited, MaTS, a
value-added videoconferencing reseller based in the United Kingdom. In
February 1998, we formed ACT Teleconferencing France, S.A., for the purpose of
operating a teleconferencing service in France.
In February 1998, we opened an office (and established an audio
teleconferencing operations center) in New Jersey to serve the New York City
area. In September 1998 we announced our expansion into Canada with the opening
of a new facility in Toronto operated by ACT Teleconferencing Canada, Inc. and
an agreement to acquire Ottawa's Advanced Multipoint Conferencing, Inc.,
Advanced Multipoint. We closed on the acquisition of Advanced Multipoint in
October 1998. We are evaluating expansion into Germany and Hong Kong.
We operate as a holding company for our wholly owned domestic and foreign
subsidiaries and for our majority owned international subsidiaries. Our
principal executive offices are located at 1658 Cole Boulevard, Suite 130,
Golden, Colorado 80401, and our telephone number is (303) 233-3500.
THE TRANSACTION
Consistent with our policy to acquire an existing provider of
teleconferencing services in various cities, rather than establishing a new
office and installing a new bridge in that city, on October 16, 1998, we agreed
to acquire 100% of the shares of Advanced Multipoint Conferencing, Inc.,
Advanced Multipoint, and paid CAN $1,656,000 consisting of CAN $330,000 in cash
and 112,710 shares of our common stock. We extended the closing date to
November 5, 1998 to obtain all the appropriate documentation and to make
adjustments in response to fluctuations in market price of our common stock and
exchange rates and to address accounting issues. The distribution of cash and
common stock to Advanced Multipoint's shareholders was:
11
<PAGE>
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
ADVANCED MULTIPOINT SHAREHOLDER CASH (CANADIAN DOLLARS) COMMON STOCK
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Mark Kelly 104,430.40 35,666
- ---------------------------------------------------------------------------------------------------------
Stephen Nava 104,430.40 35,666
- ---------------------------------------------------------------------------------------------------------
Wendy Threader 104,430.40 35,666
- ---------------------------------------------------------------------------------------------------------
Anna Cheung 1,044.30 357
- ---------------------------------------------------------------------------------------------------------
Tina Cheung 1,044.30 357
- ---------------------------------------------------------------------------------------------------------
Denis Colbourne 4,177.20 1,428
- ---------------------------------------------------------------------------------------------------------
Margo Kelly 2,088.60 714
- ---------------------------------------------------------------------------------------------------------
Terry Kelly 4,177.20 1,428
- ---------------------------------------------------------------------------------------------------------
Tom Moore 2,088.60 714
- ---------------------------------------------------------------------------------------------------------
Jack Threader 2,088.60 714
----------- ------
- ---------------------------------------------------------------------------------------------------------
TOTAL: $330,000.00 112,710 Shares
- ---------------------------------------------------------------------------------------------------------
</TABLE>
Additionally, on January 18, 1999, we entered into a Services Agreement
with Intrepid Communications, LLC, a Colorado limited liability company, for
management and other services in connection with our Ottawa office. The Service
Agreement provides for our payment of $71,500 cash and issuance of 18,500 shares
of our common stock to Intrepid Communications, LLC. The shares issued to
Advanced Multipoint's shareholders were issued under Regulation S of the
Securities Act of 1933, and the shares issued to Intrepid Communications, LLC
were exempt under section 4(2) of the Securities Act.
The Shares issued to Advanced Multipoint and Intrepid Communications, LLC
were restricted securities and were issued in transactions that were exempt from
registration under the Securities Act of 1933 and state securities laws.
FORWARD-LOOKING INFORMATION
Statements made in this prospectus or in the documents incorporated by
reference in this prospectus that are not statements of historical fact are
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, and Section 21E of the Securities Exchange Act of 1934. A number of
risks and uncertainties, including those discussed under the caption "Risk
Factors" above and the documents incorporated by reference in this prospectus
could affect these forward-looking statements and could cause actual results to
differ materially from the statements made.
USE OF PROCEEDS
We will not receive any proceeds from the issuance of our Shares to
Advanced Multipoint's shareholders, but we have already acquired 100% of
Advanced Multipoint's shares of common stock. We acquired Advanced Multipoint's
shares for CAN $1,656,000 consisting of CAN $330,000 in cash and 112,710 shares
of our common stock. We will also not receive any proceeds from the issuance of
our 18,500 shares to Intrepid Communications, LLC but will receive management
and other services from it.
12
<PAGE>
PLAN OF DISTRIBUTION
We have not engaged the services of an underwriter or broker in connection
with the issuance of the shares. Our stock transfer agent will issue the shares
as the holder of the shares directs.
DESCRIPTION OF SECURITIES
Our authorized capital stock consists of 10,000,000 shares of common stock,
no par value and 1,000,000 shares of preferred stock, no par value. As of
December 31, 1998, approximately 100 shareholders of record held 3,755,783
outstanding shares. We believe these shares are held of record for approximately
450 beneficial shareholders. There are no shares of preferred stock
outstanding.
COMMON STOCK
The holders of shares of common stock are entitled to one vote for each
share held of record on all matters on which shareholders are entitled or
permitted to vote. There is no cumulative voting for the election of directors.
After recognition of any applicable preferences to any outstanding preferred
stock, holders of common stock are entitled to receive dividends as the board of
directors may lawfully declare out of funds legally available and in liquidation
and to share pro rata in any other distribution to the holders of common stock,
although we have never paid any dividends, and we do not expect to pay any in
the future. Holders of common stock have no preemptive or subscription rights.
There are no conversion rights, redemption rights, sinking fund provisions, or
fixed dividend rights with respect to the common stock.
All currently outstanding shares of common stock are, and any common stock
issued in this offering or in connection with the future exercise of options or
warrants will be, fully paid and non-assessable.
LEGAL MATTERS
Faegre & Benson LLP, our counsel in connection with this offering, has
issued an opinion about the validity of the securities being offered.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our annual report on Form 10-KSB/A for the year
ended December 31, 1997, as set forth in their report, which is incorporated by
reference in this registration statement. Our consolidated financial statements
are incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
INDEMNIFICATION
As far as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to our directors, officers, and controlling persons, we
have been advised that in the opinion of the Securities and Exchange Commission
this indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Other expenses in connection with this registration on Form S-3 are
estimated to be:
13
<PAGE>
<TABLE>
<CAPTION>
-----------------------------------------------------------------------
ITEM* APPROXIMATE EXPENSE
-----------------------------------------------------------------------
<S> <C>
SEC registration fee $191.50
-----------------------------------------------------------------------
Legal Fees 10,000*
-----------------------------------------------------------------------
Accounting Fees and Expenses 10,000*
-----------------------------------------------------------------------
Transfer Agent's Fees 235*
-----------------------------------------------------------------------
Miscellaneous Expenses 973.50*
-------
-----------------------------------------------------------------------
Total $21,400
-----------------------------------------------------------------------
</TABLE>
* Indicates estimate for the purpose of this filing.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Colorado Business Corporation Act permits a corporation organized under
it to indemnify its directors, officers, employees, and agents for various acts.
We formed our Articles of Incorporation to conform to the Colorado Business
Corporation Act. (Our Articles of Incorporation, and their amendments, are
incorporated by reference as Exhibit 3.1 to this registration statement.)
In general, we may indemnify any officer, director, employee, or agent
against expenses, fines, penalties, settlements, or judgments arising in
connection with a legal proceeding to which this person is a party, if that
person's actions were in good faith, were believed to be in our best interest,
and were not unlawful. Indemnification is mandatory with respect to a director
or officer who was wholly successful in defense of a proceeding. In all other
cases, indemnification of a director, officer, employee, or agent requires the
board of directors independent determination, independent legal counsel's
determination, or a vote of the shareholders that the person to be indemnified
met the applicable standard of conduct.
The circumstances under which indemnification is granted in connection with
an action brought on our behalf are generally the same as those mentioned
above. However, with respect to actions against directors, indemnification is
granted only with respect to reasonable expenses actually incurred in connection
with the defense or settlement of the action. In these actions, the person to be
indemnified must have acted in good faith and in a manner the person reasonably
believed was in our best interest; the person must not have been adjudged liable
to us; and the person must not have received an improper personal benefit.
Indemnification may also be granted under the terms of agreements which may
be entered into in the future according to a vote of shareholders or directors.
In addition, we are authorized to purchase and maintain insurance which
protects our officers and directors against any liabilities incurred in
connection with their services in these positions. We may obtain an insurance
policy in the future.
ITEM 16. EXHIBITS.
Exhibit
- -------
No. Description
- -- -----------
3.1/(2)/ Restated Articles of Incorporation of ACT dated April 15, 1996
3.2/(2)/ Bylaws of ACT, amended as of April 15, 1996
4.1/(1)/ Form of specimen certificate for common stock of ACT
5 Opinion of Faegre & Benson LLP
10.1/(1)/ Stock Option Plan of 1991, as amended, authorizing 400,000 shares
of common stock for issuance under the Plan
10.2/(1)/ Form of Stock Option Agreement
10.3/(1)/ Form of common stock purchase warrant
14
<PAGE>
10.10/(1)/ Split Dollar Insurance Agreement dated March 1, 1990, between ACT
and Gerald D. Van Eeckhout
10.11/(1)/ Service Agreement dated April 10, 1992 between David Holden and ACT
Teleconferencing Limited
10.19/(4)/ Stock Option Plan of 1996
10.20/(5)/ Employee Stock Purchase Plan
10.22/(6)/ Loan and Security Agreement dated March 31, 1998 and Form of stock
purchase warrant with Sirrom Capital Corporation and Equitas
L.P.
10.23/(6)/ Loan Agreement with Key Bank, N.A.
10.24/(7)/ Lease Commitment and Warrant with R.C.C. Finance Group Ltd.
10.25/(7)/ Contract for the Supply of Conferencing Services Design Development
and Information signed July 14, 1998 between ACT Teleconferencing
Services, Inc. and Concert Global Networks Limited
10.26/(7)/ Agreement for the Supply of Conferencing Services signed July 14,
1998 between ACT Teleconferencing Services, Inc. and Concert Global
Networks Limited
10.27/(7)/ Agreement for Videoconferencing Equipment and Services (GTE
Telephone Operating Companies) dated October 1, 1998
23.1 Consent of Ernst & Young LLP
24.1 Power of Attorney included in signature page of registration
statement
/(1)/ Incorporated by reference, attached as an exhibit of the same number to
our registration statement on Form SB-2 filed with the SEC on October 10,
1995, and amendments to our Form SB-2, File No. 33-97908-D.
/(2)/ Incorporated by reference, attached as an exhibit of the same number to
our Form 10-QSB for the quarter ending March 31, 1996 filed with the SEC
on May 15, 1996, File No. 0-27560.
/(3)/ Incorporated by reference, attached as an exhibit of the same number to
our Form S-8, filed with the SEC on July 2, 1998, File 0-27560.
/(4)/ Incorporated by reference, attached as an exhibit to our Schedule 14A
Information filed with the SEC on April 30, 1997, File No. 0-27560.
/(5)/ Incorporated by reference, attached as an exhibit to our Schedule 14A
Information filed with the SEC on April 15, 1998, File No. 0-27560.
/(6)/ Incorporated by reference, attached as an exhibit of the same number to
our Amendment No. 1 to Form 10-QSB for the quarter ending June 30, 1998
filed with the SEC on August 24, 1998 (originally filed under cover of
Form SE on August 14, 1998), File 0-27560.
/(7)/ Incorporated by reference, attached as an exhibit of the same number to
our Form 10-QSB for the quarter ending September 30, 1998, filed with the
SEC on November 16, 1998, File 0-27560.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement to include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to the information in the
registration statement.
. That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered in the
registration
15
<PAGE>
statement, and the offering of the securities at that time shall be deemed to be
the initial bona fide offering of the securities.
. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
this offering.
. That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report under Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of the securities
at that time shall be deemed to be the initial bona fide offering of the
securities.
As far as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
Registrant under the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the SEC this indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. If
a claim for indemnification against 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 this
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of this issue.
16
<PAGE>
SIGNATURES
Under 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-3 and has duly caused the undersigned to sign
this registration statement or amendment on the Registrant's behalf, duly
authorized in the City of Golden, State of Colorado, on March 17, 1999.
ACT TELECONFERENCING, INC.
Date: March 17, 1999 By /s/ Gerald D. Van Eeckhout
--------------------------
Gerald D. Van Eeckhout
Chief Executive Officer
Under to the requirements of the Securities Act of 1933, the following
persons in the capacities and on the dates stated signed this registration
statement or amendment.
Signature Title
- --------- -----
/s/ Gerald D. Van Eeckhout Chief Executive Officer
- --------------------------
Gerald D. Van Eeckhout and Director
(Principal Executive Officer)
/s/ Gavin Thomson Chief Financial Officer
- --------------------------
Gavin Thomson (Principal Financial & Accounting Officer)
* Director
- --------------------------
Ronald J. Bach
* Director
- --------------------------
James F. Seifert
* Director
- --------------------------
Carolyn R. Van Eeckhout
* Director
- --------------------------
Donald Sturtevant
* Gavin Thomson signs this document on behalf of each of the above named
directors of the Registrant under each person's duly executed power of attorney.
/s/ Gavin Thomson
--------------------------------
Gavin Thomson, Attorney in fact
17
<PAGE>
INDEX TO EXHIBITS
All exhibits are filed electronically or incorporated by reference.
Exhibit
- -------
No. Description
- -- -----------
3.1/(2)/ Restated Articles of Incorporation of ACT dated April 15, 1996
3.2/(2)/ Bylaws of ACT, amended as of April 15, 1996
4.1/(1)/ Form of specimen certificate for common stock of ACT
5 Opinion of Faegre & Benson LLP
10.1/(1)/ Stock Option Plan of 1991, as amended, authorizing 400,000 shares
of common stock for issuance under the Plan
10.2/(1)/ Form of Stock Option Agreement
10.3/(1)/ Form of common stock purchase warrant
10.10/(1)/ Split Dollar Insurance Agreement dated March 1, 1990, between ACT
and Gerald D. Van Eeckhout
10.11/(1)/ Service Agreement dated April 10, 1992 between David Holden and ACT
Teleconferencing Limited
10.19/(4)/ Stock Option Plan of 1996
10.20/(5)/ Employee Stock Purchase Plan
10.22/(6)/ Loan and Security Agreement dated March 31, 1998 and Form of stock
purchase warrant with Sirrom Capital Corporation and Equitas
L.P.
10.23/(6)/ Loan Agreement with Key Bank, N.A.
10.24/(7)/ Lease Commitment and Warrant with R.C.C. Finance Group Ltd.
10.25/(7)/ Contract for the Supply of Conferencing Services Design Development
and Information signed July 14, 1998 between ACT Teleconferencing
Services, Inc. and Concert Global Networks Limited
10.26/(7)/ Agreement for the Supply of Conferencing Services signed July 14,
1998 between ACT Teleconferencing Services, Inc. and Concert Global
Networks Limited
10.27/(7)/ Agreement for Videoconferencing Equipment and Services (GTE
Telephone Operating Companies) dated October 1, 1998
23.1 Consent of Ernst & Young LLP
24.1 Power of Attorney included in signature page of registration
statement
/(1)/ Incorporated by reference, attached as an exhibit of the same number to
our registration statement on Form SB-2 filed with the SEC on October 10,
1995, and amendments to our Form SB-2, File No. 33-97908-D.
/(2)/ Incorporated by reference, attached as an exhibit of the same number to
our Form 10-QSB for the quarter ending March 31, 1996 filed with the SEC
on May 15, 1996, File No. 0-27560.
/(3)/ Incorporated by reference, attached as an exhibit of the same number to
our Form S-8, filed with the SEC on July 2, 1998, File 0-27560.
/(4)/ Incorporated by reference, attached as an exhibit to our Schedule 14A
Information filed with the SEC on April 30, 1997, File No. 0-27560.
/(5)/ Incorporated by reference, attached as an exhibit to our Schedule 14A
Information filed with the SEC on April 15, 1998, File No. 0-27560.
/(6)/ Incorporated by reference, attached as an exhibit of the same number to
our Amendment No. 1 to Form 10-QSB for the quarter ending June 30, 1998
filed with the SEC on August 24, 1998 (originally filed under cover of
Form SE on August 14, 1998), File 0-27560.
18
<PAGE>
/(7)/ Incorporated by reference, attached as an exhibit of the same number to
our Form 10-QSB for the quarter ending September 30, 1998, filed with the
SEC on November 16, 1998, File 0-27560.
19
<PAGE>
Exhibit 5
OPINION OF COUNSEL
February 15, 1999
ACT Teleconferencing, Inc.
Suite 130
1658 Cole Boulevard
Golden, Colorado 80401
RE: Registration on Form S-3
------------------------
Ladies and Gentlemen:
You have requested our opinion as counsel for ACT Teleconferencing, Inc.,
ACT, a Colorado corporation, in connection with your registration statement on
Form S-3 under the Securities Act of 1933, the Securities Act, as amended, and
the rules and regulations promulgated under the Securities Act, for ACT's
offering of 131,210 shares of common stock, no par value, the shares.
We have examined ACT Form S-3 to be filed with the SEC on or about February
15, 1999, the registration statement. We have also examined the amended and
restated articles of incorporation of ACT , as on file with the Secretary of
State of the State of Colorado, the amended and restated bylaws and the minute
book of ACT, various exhibits filed in connection with the registration
statement, and other documents as we have deemed necessary to provide a basis
for the opinion expressed in this opinion. We have also consulted with officers
and directors of ACT to clarify, confirm, or supplement the foregoing
documentation.
Based on the foregoing, it is our opinion that all of the necessary
corporate action on the part of ACT has been taken to authorize the issuance and
sale of the shares when sold and issued as the registration statement
contemplates, the shares will be legally and validly issued and outstanding and
the shares will be fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the registration
statement and consent to the use of our name under the caption "Legal Matters"
in the prospectus.
Very truly yours,
/s/ FAEGRE & BENSON LLP
Faegre & Benson LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the registration statement Form S-3 and related prospectus of
ACT Teleconferencing, Inc. for the registration of 131,210 shares of its common
stock and to the incorporation by reference therein of our report dated February
20, 1998, with respect to the consolidated financial statements and schedules of
ACT Teleconferencing, Inc. included in its annual report Form 10-KSB/A for the
year ended December 31, 1997, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Denver, Colorado
March 15, 1999
