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Filed with the Securities and Exchange Commission on November 13, 2000
Registration Nos. 333-32156, 333-38854
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SECURITIES AND EXCHANGE COMMISSION
________________
Post Effective Amendment No. 1 to Form S-1
on
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
________________
ACT TELECONFERENCING, INC.
--------------------------
(Exact name of registrant as specified in its charter)
Colorado
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(State or other jurisdiction of incorporation)
84-1132665
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(I.R.S. Employer Identification Number)
1658 Cole Boulevard, Suite 130
Golden, Colorado 80401
(303) 235-9000
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(Address and telephone number of principal executive offices)
Gavin J. Thomson
Chief Financial Officer
ACT Teleconferencing, Inc.
1658 Cole Boulevard, Suite 130
Golden, Colorado 80401
(303) 235-9000
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(Name, address, and telephone number of agent for service)
Copies to:
William J. Campbell, Esq.
Benjamin M. Chin, Esq.
Faegre & Benson LLP
370 Seventeenth Street, Suite 2500
Denver, Colorado 80202
Phone: (303) 820-0630
Fax: (303) 820-0600
<PAGE>
Approximate date of commencement of sale to the public: as soon as
practicable after the effective date of this registration statement.
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.
/X/
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>
Title of each class of Amount to Proposed maximum offering Proposed maximum Amount of
securities to be registered be registered price per share(2) aggregate offering price(2) registration fee
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Warrant shares(1) 400,000 $8.125 $3,250,000 $0.00 (3)
</TABLE>
(1) One warrant share (common stock) issuable upon exercise of one warrant.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, solely
for the purpose of calculating the registration fee based on the average
high and low sale prices per share of the registrant's common stock on
November 9, 2000 as reported on the Nasdaq SmallCap Market System.
(3) The registrant previously paid the registration fee when it filed its
registration statement on Form S-1 on March 10, 2000 and Form S-1 MEF on
June 8, 2000.
The registrant hereby amends this registration statement on such 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 in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Resale Prospectus
ACT TELECONFERENCING, INC.
400,000 Warrant Shares (common stock)
(Previously registered)
[COMPANY LOGO GOES HERE]
The selling shareholders, identified on page ______, may offer 400,000
warrant shares (common stock) previously registered. We will not receive any
proceeds from the sale of these shares.
Price per
share Total
Warrant shares $8.125 $3,250,000
The offering price is based on recent prices of our common stock as quoted
on the Nasdaq SmallCap Market. There are no underwriters involved in this
offering.
Trading symbol:
Nasdaq Small Cap Market: ACTT (common stock)
Investing in our common stock involves risks. See "Risk Factors" on page 6.
Neither the Securities Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
November 13, 2000
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We have not authorized anyone to provide you with information different
from that contained in this prospectus. We are offering to sell, and seeking
offers to buy, shares of common stock only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is accurate
only as of the date of this prospectus, regardless of the time of delivery of
this prospectus or of any sale of our common stock.
Explanatory Note
ACT Teleconferencing, Inc. files this Post Effective Amendment No. 1 to
amend its registration statements on Form S-1, File 333-32156, filed with the
Securities and Exchange Commission on March 10, 2000 and amended on May 2, 2000
(Amendment No. 1) and May 22, 2000 (Amendment No. 2) and Form S-1 MEF, File
333-38854, filed June 8, 2000. We are not registering additional securities but
are updating our registration statement for the warrant shares.
TABLE OF CONTENTS
-----------------
PAGE
SUMMARY.................................... 5
RISK FACTORS............................... 6
WHERE YOU CAN FIND MORE INFORMATION........ 12
USE OF PROCEEDS............................ 13
SELLING SHAREHOLDERS....................... 13
PLAN OF DISTRIBUTION....................... 15
DESCRIPTION OF SECURITIES.................. 16
ELIMINATION OF DIRECTOR LIABILITY.......... 16
INDEMNIFICATION OF OFFICERS AND DIRECTORS.. 17
LEGAL MATTERS.............................. 18
EXPERTS.................................... 18
TRANSFER AGENT AND WARRANT AGENT........... 18
In this prospectus, "ACT," "we," "us," and "our" refer to ACT
Teleconferencing, Inc., a Colorado corporation.
Our logo and the names of our products and services mentioned in this
prospectus are either trademarks or servicemarks that we own. Each trademark,
trade name, or service mark of any other company appearing in this prospectus
belongs to its holder.
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SUMMARY
This summary highlights only selected information contained elsewhere in
this prospectus or our filings with the Securities and Exchange Commission (the
"SEC"). It does not contain all of the information that is important to you
before investing in our common stock. To understand this offering fully, you
should read the entire prospectus carefully and other documents we file with the
SEC, including documents containing our financial statements.
ACT Teleconferencing, Inc. is a leading full service provider of audio,
video, data, and Internet-based conferencing services to businesses and
organizations in North America, Europe, and Asia. Our conferencing services
enable our clients to conduct electronic meetings efficiently and cost
effectively by linking multiple participants in geographically dispersed
locations.
Currently, we have 11 operations centers and 13 sales offices in Australia,
Belgium, Canada, France, Germany, Hong Kong, the Netherlands, the United
Kingdom, and the United States. Our global presence and the rapid growth in the
conferencing services market have allowed us to build a quality client base
ranging from Fortune 500 companies to small business enterprises. Our primary
focus is on providing high value-added conferencing services to organizations in
information-intensive industries, such as accounting firms, consulting firms,
investment banks, high tech companies, law firms, investor relations firms, and
other multinational companies. Our customers include premier names such as Ernst
& Young, Concert Global Networks, Industrial Bank of Japan, Philips Electronics,
KLM, and British Petroleum.
Our Business
Our services are designed to meet the growing teleconferencing needs of a
broad range of customers across a diverse range of information-intensive
industries. We provide services to clients on a global basis while aiming to
deliver unsurpassed excellence in quality of service. We use state-of-the-art
conferencing technology that allows us to accommodate as many as 1,000
participants in conference calls or Internet presentations at a level of quality
consistent with the highest business standards. We purchase the best of class
equipment and services from leading suppliers, allowing us to deploy the latest
available technology.
We believe that our extensive range of value-added conferencing services,
combined with our global presence and emphasis on superior customer service,
provides significant competitive advantages that have enabled us to become the
provider of choice for numerous high volume users of teleconferencing services.
Our global presence enables us to serve our clients by operating in local time
zones, providing local language service, and staffing our operations centers
with country nationals. Attending to the global needs of our customers has
allowed us to grow from approximately 20,000 conferences in 1994 to over 250,000
in 1999, a compound annual growth rate exceeding 65%.
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We market our services internationally through our direct sales force as
well as through outsourcing and co-marketing arrangements with leading
telecommunications providers, such as GTE and Concert, the worldwide joint
venture of AT&T and British Telecom. These arrangements allow our outsourcing
and co-marketing partners to market our teleconferencing services as a part of a
total telecommunications solution for their customers.
RISK FACTORS
This offering involves a high degree of risk. You should carefully consider
the risks described below and the other information in our filings with the SEC
before deciding whether to invest in our common stock. While we have attempted
to identify all risks that are material to our business, additional risks that
we have not yet identified or that we currently think are immaterial may also
impair our business operations. The trading price of our common stock could
decline due to any of these risks, in which case you could lose all or part of
your investment. In assessing these risks, you should also refer to the other
information in this prospectus and in our filings with the SEC, including the
consolidated financial statements in our annual report, the unaudited pro forma
combined financial information in our quarterly reports, and related notes.
Our revenues may fluctuate because we draw significant revenues from three major
clients.
The loss of any one of our three largest customers, but especially the
largest one, would have a material adverse effect on our business. Our three
largest customers represent over 40% of our total business. Teleconferencing
customers can easily switch to a competing provider or allocate their business
among several vendors. In 1999, our three largest customers accounted for 24%,
14%, and 4% of our revenues. Mergers, consolidations, or other changes in
ownership or alliances that impact any of our customers could also adversely
impact our revenues or cause us to lose a substantial client.
The failure to manage our growth into new service offerings or to hire
additional qualified employees could have a material adverse effect on us.
Our failure to attract and retain the necessary personnel or effectively
manage our growth in employees and operations could have a material adverse
affect on our business, financial condition, and operating results. The
expansion of our business into Internet-based service offerings as well as our
rapid internal growth will place a significant strain on our current management
resources. To structure, deliver, and support these new services, we will need
to provide additional training for current employees and compete in the market
for new employees, especially those who are skilled in the delivery of Internet
services. Competition for talented personnel is intense, and we cannot assure
you that we will be able to attract, integrate, and retain sufficiently
qualified staff to support the growth in our existing business or our expansion
into Internet-based conferencing services.
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We may not be able to compete against our major competitors in the
telecommunications industry who have substantially greater capital resources and
name recognition than we have.
The telecommunications industry is highly competitive, and many of our
competitors and potential competitors have substantially greater capital
resources and name recognition than we have. Accordingly, we may not be able to
compete with them in terms of advertising, marketing, sales, and deployment of
capital. To compete successfully against other telecommunications and
teleconferencing providers, we must be able to maintain competitive pricing
while at the same time offering high quality services. A competitor that
operates substantially more ports than we operate will have more flexibility in
the size of conferences it can conduct and the prices it can charge. A well
capitalized competitor can offer a wider array of service and pricing options
that we may not be able to match.
The development of Internet-based conferencing services that compete with our
conventional circuit-switched audio conferencing injects an unknown competitive
factor into the teleconferencing industry and our business.
Over 90% of our current revenues are derived from audio conferences that
are carried over conventional circuit-switched analog and digital telephone
lines. The potential use of the Internet to transmit long distance voice, video,
and data and to develop new types of conferences represents a material change in
the telecommunications industry. The Internet offers less expensive long
distance transmission and greater flexibility in conferences that combine audio,
video, and data. We offer no assurance that our current business practices or
our new initiatives in Internet conferencing can address and exploit these
developments, particularly since the scope of change and the impact of change
are not known to us at this early stage of market development.
If Internet telephony and Internet infrastructure do not continue to develop as
anticipated, our operations will be negatively affected.
For Internet telephony and Internet-based conferencing services to be
commercially viable, the size of the network infrastructure, enabling
technologies, necessary performance improvements, and user security will need to
be upgraded and usage must increase substantially. If the Internet continues to
experience an increased number of users, increased frequency of use, or
increased bandwidth requirements, we can provide you no assurance that the
performance or reliability of the Internet will not be adversely affected. We
cannot assure you that the infrastructure or products or services necessary to
make the Internet a viable commercial marketplace for the long term will be
developed. The Internet has experienced a variety of outages and other delays as
a result of damage to portions of its infrastructure, and could face such
outages and delays in the future. These outages and delays could adversely
affect the level of Internet telephony usage, the level of traffic, and our
Internet-based teleconferencing services.
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If Internet telephony conferencing does not gain market acceptance, our
potential for growth will be adversely affected.
We cannot be certain that Internet telephone service will gain market
acceptance or prove to be a viable alternative to traditional telephone service.
If the Internet telephony market fails to develop or develops more slowly than
we expect, then our future revenues from conferencing over the Internet would be
adversely affected.
Technological innovations could render our current services obsolete.
We expect technical innovations to stimulate new developments in
teleconferencing services. These range from the development of more
sophisticated computers, telephone sets, private branch exchanges, customer-
owned bridges, unattended conferencing systems, and centralized office switching
equipment to Internet telephony. Other competitive developments within the
telecommunications industry, such as low-priced long distance services and new
uses for the Internet, aside from the Internet-based services we are currently
developing, may lead the major telecommunications companies to offer low-cost
teleconferencing services as a strategy to obtain greater market share in other
product areas. These innovations and developments could render our current
service offerings obsolete or uneconomic.
We may be vulnerable to technical malfunctions which could adversely affect our
operations.
We depend upon our software systems, communications hardware, and enhanced
services platform to conduct our conferencing business. Our systems,
communications hardware, and platform are vulnerable to damage or interruption
from:
. Natural disasters.
. Power loss.
. Telecommunication failures.
. Loss of Internet access.
. Physical and electronic break-ins.
. Hardware defects.
. Computer viruses.
. Intentional acts of vandalism and similar events.
If we experience substantial technical difficulties with our
teleconferencing bridges, hardware, or software, we may not succeed in routing
conferencing traffic effectively.
We incur financial risks in our international operations.
We incur financial risks associated with international operations and
related foreign currencies. International sales comprised approximately 50% of
revenues in 1999 and we anticipate that international sales will continue to
account for a significant portion of our consolidated revenue. Our international
conferences that are initiated outside the United States
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are denominated in local currency and are subject to foreign currency exchange
risks. The assets and liabilities in our international operations also are
denominated in each country's local currency and are subject to foreign currency
exchange risks.
If we are unable to expand our international operations when we identify
opportunities and bring them to a profitable operation within a reasonable time,
we may be unable to complete our global platform.
We cannot assure you that all our international offices will become and
remain profitable. Our international offices are in Canada, the United Kingdom,
France, Belgium, the Netherlands, Germany, Australia, and Hong Kong. We intend
to expand the scope of our international operations, which will require us to
open and staff new offices in additional countries, invest in more bridging
equipment, fund marketing expenses, and incur other start-up costs. We incur
these startup expenses when we open a new international office before we
generate any revenue from that office. We intend to continue opening new
international offices and view these expansion expenses as a necessary
investment in future revenue growth, but we need each of these offices to become
profitable within a reasonable time if we are to continue building our global
platform.
Our plans to expand may be discontinued if we are unable to obtain sufficient
financing.
We may not be able to fully implement our domestic and international
expansion plans with only the net proceeds from our sale of 800,000 shares of
common stock in June 2000 and the sale of the 400,000 warrant shares which are
the subject of this offering, especially with respect to our plans for Internet
telephony conferencing and additional international offices. We may need
additional equity or debt financing, collaborative arrangements with corporate
partners, or funds from other sources for these purposes. Additional equity
financings may be dilutive to our stockholders and debt financing may impose
restrictive covenants on the way we operate our business. We may have difficulty
obtaining these funds on a timely basis and on acceptable terms, if at all. If
we cannot obtain adequate funds from operations or additional sources of
financing, particularly if obtaining or retaining a customer's business depends
on the prompt expansion of existing facilities or the opening of a new foreign
office, we may experience operational difficulties and the loss of customers.
Our business, financial condition, and results of operations will be materially
and adversely affected by the unavailability of capital when we need it.
There are few regulatory barriers to entry into our current markets and new
competitors may enter at any time.
There are few regulatory barriers to competition in our markets. Until
recently, local exchange carriers in the United States, including local
telephone companies, were prohibited from providing audio teleconferencing,
except in limited areas. Recent federal legislation allows local exchange
carriers to offer teleconferencing services. This legislation may result in
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.
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There are no significant regulatory barriers to enter the markets we serve
in Canada, the United Kingdom, the Netherlands, France, Belgium, Germany,
Australia, or Hong Kong. Barriers to entry in other foreign markets vary, but
may involve governmental regulation or government-owned telephone systems that
block changes in existing regulations or resist competition with independent
teleconferencing companies. These barriers may restrict our expansion into
additional foreign markets.
We may not find the investment opportunities to optimize the use of our working
capital.
The intense competition within our industry for traditional conferencing
services and the opportunity to explore, develop, and deliver Internet
conferencing services require that we have resources available on short notice
to allow us to penetrate new markets or provide new services. We have broad
discretion in the application of our working capital and cannot assure you that
our judgment in selecting these opportunities will optimize our use of our
working capital.
We may be unable to adequately protect our proprietary rights which may limit
our ability to compete effectively.
We hold no patents. We may not be able to protect our proprietary
information, business practices, trade secrets, or trademarks against a
competitor's use, and we may not be successful in litigation we might bring to
protect our proprietary information, business practices, or trademarks. To
protect our proprietary rights, we rely generally on copyright, trademark, and
trade secret laws, and confidentiality agreements with employees and third
parties. However, employees, consultants, and others could breach their
confidentiality agreements and we may not have adequate remedies for such
breach. Further, while we believe our name and the "ACT" logo are unique in the
teleconferencing market, a variety of other enterprises' 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 that the pursuit of
trademark protection is prohibitively expensive.
Our common stock price has been highly volatile, and we expect this volatility
to continue.
The market price of our common stock is highly volatile and may decline. We
anticipate that the volatility of our common stock price may continue due to
factors such as:
. Actual or anticipated fluctuations in results of our operations.
. Changes in or failure to meet securities analysts' expectations.
. Changes in market valuations of other teleconferencing companies.
. Announcements by us or our competitors of significant technological
innovations, contracts, acquisitions, strategic partnerships, joint
ventures, or capital commitments.
. Introduction of new services by us or our competitors.
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. Conditions and trends in the teleconferencing industry and related
technology industries.
. Future sales of our common stock.
These factors are in addition to significant price and volume fluctuations
in the securities markets that may be unrelated to our operating performance.
Provisions of our articles of incorporation could delay or prevent a change in
control of ACT.
Certain provisions of our articles of incorporation may discourage, delay,
or prevent a merger or acquisition that a stockholder may consider favorable.
These provisions include:
. Authority of the board of directors to issue additional preferred
stock.
. Prohibition on cumulative voting in the election of directors.
. Election of directors by class for terms of three years.
. Limitations on the ability of third parties to acquire us by their
offer of a premium price to selected stockholders.
. Agreements with key executives which provide special termination
payments in the event of a change in control.
. A share rights plan that enables stockholders to dilute an acquiring
person's investment through the stockholders' purchase of a large
number of shares.
Purchasers in this offering will experience immediate and substantial dilution.
The offering price per share in this offering significantly exceeds our net
tangible book value per share. Accordingly, the purchasers of shares sold in
this offering will experience immediate and substantial dilution in the net
tangible book value of their investment.
The price of our common stock may be adversely affected by the sale of a
significant number of the shares available for future issuance through the
exercise of options and warrants.
The exercise of outstanding warrants and options and the potential sale of
the underlying shares could have a material adverse effect on the public trading
price of our stock, if the holders are willing to sell at a price that is
significantly less than the current market price or the number of shares sold
exceeds the number of shares the market can absorb at the current market price.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements, and other
information with the SEC. You may read and copy any reports, statements, or
other information on file at the SEC's public reference room in Washington, D.C.
You can request copies of those documents, upon payment of a duplicating fee, by
writing to the SEC .
We have filed a registration statement on Form S-1 and its amendments with
the SEC. This prospectus, which forms a part of the registration statement, does
not contain all of the information included in the registration statement.
Certain information is omitted, and you should refer to the registration
statement and its exhibits. With respect to references made in this prospectus
to any contract or other document of ours, such references are not necessarily
complete, and you should refer to the exhibits attached to the registration
statement for copies of the actual contract or document. You may review a copy
of the registration statement at the SEC's public reference rooms at 450 Fifth
Street, N.W., Washington, D.C. 20549; Chicago, Illinois; or New York, New York.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the public reference rooms.
Our SEC filings and the registration statement can also be reviewed by
accessing the SEC's Internet site at http://www.sec.gov.
Incorporation by Reference
The SEC allows us to "incorporate by reference" the information contained
in documents that we file with them, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this prospectus.
Information in this prospectus supersedes information incorporated by reference
that we filed with the SEC before the date of this prospectus, while information
that we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 (the "Securities Exchange Act")
before the termination of the offer described in this prospectus:
. Our quarterly report on Form 10-Q, file no. 000-27560, filed
on or about November 13, 2000 for the quarter ended September 30,
2000.
. Our quarterly report on Form 10-Q, file no. 000-27560, filed
on August 14, 2000 for the quarter ended June 30, 2000.
. Our prospectus filed on June 8, 2000. file nos. 333-32156 and
333-38854.
. Our registration statement on Form S-1 (MEF), file no. 333-
38854, filed on June 8, 2000.
. Our current report on Form 8-K filed on June 6, 2000.
. Our annual report on Form 10-KSB, as amended, filed on May
31, 2000 for the year ended December 31, 1999.
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. Our amendment no. 2 to Form S-1, file no . 333-32156, filed
on May 22, 2000, which includes the description of the securities
registered.
. Our quarterly report on Form 10-Q, filed on May 15, 2000 for
the quarter ended March 31, 2000.
. The Schedule 14A Information filed on May 12, 2000.
. Our amendment no. 1 to Form S-1, file no. 333-32156, filed on May 2,
2000.
. Our current report on Form 8-K filed on March 17, 2000.
. Our Form S-1, file no. 333-32156, filed on March 10, 2000.
You may request a copy of these filings, at no cost to you, by writing or
telephoning us at:
Investor Relations Department
ACT Teleconferencing, Inc.
1658 Cole Boulevard, Suite 130
Golden, CO 80401
Telephone: (303) 235-9000
Our common stock is quoted on the Nasdaq SmallCap Market under the
symbol ACTT. The last reported sales price of the common stock on the Nasdaq
SmallCap Market on November 9, 2000 was $8.125 per share. You may inspect
reports and other information concerning us at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the front of the
document.
USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling
shareholders of the shares offered in this prospectus. See "Selling
Shareholders."
The selling shareholders currently hold warrants to purchase 400,000
shares of common stock at an exercise price of $6.05 per share. If the selling
shareholders or their transferees exercise all of these warrants for 400,000
shares, the proceeds to us would be $2,420,000, and we would use the proceeds
for general corporate purposes.
SELLING SHAREHOLDERS
The shares registered for sale under this prospectus are the 400,000
warrant shares issued to investors through our registration statements on Form
S-1 filed on March 10, 2000
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and amended on May 2, 2000 (Amendment No. 1) and May 22, 2000 (Amendment No. 2)
and on Form S-1 MEF, File 333-38854, filed June 8, 2000. The selling
shareholders are:
Number of
Name shares
Robert G. Allison 5,000
Gary A. Bergren 5,000
Craig L. Campbell 2,500
Cede & Co.* 12,375
Dennis D. Gonyea 2,500
Dorothy J. Hoel 2,500
Lancaster Investment Partners LP 88,000
Lancaster Investment Partners LP 55,000
Paine Webber Inc.* 5,000
John T. Potter 2,125
Special Situations Private Equity Fund LP 150,000
Special Situations Technology Fund LP 50,000
USB Piper Jaffray as Custodian for the benefit of
Bradley A. Erickson IRS 5,000
USB Piper Jaffray as Custodian for the benefit of
Richard C. Perkins IRA 12,500
David M. Westrum Trustee for the benefit of David M.
Westrum Revocable Living Trust 2,500
TOTAL: 400,000
*Holder in street name.
Before this offering, the selling shareholders did not own any shares of
our common stock, and none of them had a relationship with us or our
predecessors or affiliates within the
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past three years. The selling shareholders will determine the number of shares
that they will actually sell, and the offer may depend upon a number of factors
including the market price of the shares. Because the selling shareholders may
offer all, some, or none of the shares, and because the offering this prospectus
covers is currently not being underwritten, no estimate can be given as to the
number of shares that the selling shareholders will hold upon or prior to
termination of this offering.
PLAN OF DISTRIBUTION
The selling shareholders, or their pledgees, donees, transferees, or any
of their successors in interest, may sell the shares from time to time on any
stock exchange or automated interdealer quotation system on which the shares are
listed, in the over-the-counter market, in privately negotiated transactions or
otherwise, at fixed prices that may be changed, at market prices prevailing at
the time of sale, at prices related to prevailing market prices, or at prices
otherwise negotiated. We do not know of any arrangements by the selling
shareholders for the sale of any of the shares. The selling shareholders may
sell the shares by one or more of the following methods, without limitation:
. block trades in which the broker or dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction;
. Purchases by a broker or dealer as principal and resale by the broker
or dealer for its own account under this prospectus;
. ordinary brokerage transactions and transactions in which the broker
solicits purchases;
. privately negotiated transactions;
. short sales;
. through the writing of options on the shares, whether or not the
options are listed on an options exchange; or
. any combination of any of these methods of sale.
The selling shareholders may also transfer the shares by gift.
We will not receive any proceeds from sales of any shares by the selling
shareholders. We cannot ensure that the selling shareholders will sell all or
any portion of the shares offered in this registration statement.
Shares issuable upon exercise of the warrants held by the selling
shareholders will be issued directly by us. No brokerage commission or similar
fee will be paid in connection with the issuance of these shares. We will bear
all expenses in connection with the registration of the shares covered by this
prospectus.
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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 non-voting preferred stock, no par value.
On October 19, 1999, we issued 2,000 shares of Series A preferred stock to one
investor, which shares are currently outstanding. In connection with our
stockholder rights plan, we created Series B Junior Participating Preferred
Shares for stockholders of record on and following December 10, 1999, but have
not issued any Series B shares.
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 stockholders 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.
We have never paid any dividends. Holders of common stock have no preemptive or
subscription rights. There are no conversion rights, redemption rights, sinking
fund provisions, fixed dividend rights, liabilities to further calls, assessment
for liabilities under state statute, restriction on alienability, or any
discriminating provision against existing or prospective stock with respect to
the common stock.
ELIMINATION OF DIRECTOR LIABILITY
Our articles eliminate the personal liability of our directors to the
company and to our stockholders for monetary damages for breach of fiduciary
duty, except in the instances described below. The Colorado Business Corporation
Act authorizes the elimination of personal liability and is designed, among
other things, to encourage qualified individuals to serve as directors of
Colorado corporations by permitting Colorado corporations to limit or eliminate
directors' liability for monetary damages for breach of the duty of care.
Directors remain liable for breaches of their duty of loyalty to us and our
stockholders, as well as for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law and for transactions from
which a director derives improper personal benefit. The articles do not
eliminate director liability under a separate provision of the Colorado Business
Corporation Act that makes directors personally liable for unlawful payments of
dividends, unlawful stock repurchases or redemptions, unlawful distributions of
assets during liquidation, and unlawful loans or guarantees to a director. The
Colorado Business Corporation Act expressly sets forth a negligence standard
with respect to such liability.
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The provisions that eliminate liability as described above will apply to
our officers only if they are our directors and are acting in their capacity as
directors and will not apply to our officers who are not directors.
INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Colorado Business Corporation Act contains provisions permitting and,
in some situations, requiring Colorado corporations to provide indemnification
to their officers and directors for losses and litigation expense incurred in
connection with their service to the corporation. Our articles of incorporation
and bylaws contain provisions requiring our indemnification of our directors and
officers and other persons acting in their corporate capacities.
The Colorado Business Corporation Act permits indemnification of a director
of a Colorado corporation, in the case of a third-party action, if the director:
. Conducted himself or herself in good faith,
. Reasonably believed that (a) in the case of conduct in his or her
official capacity, his or her conduct was in the corporation's best
interest, or (b) in all other cases, his or her conduct was not
opposed to the corporation's best interest, and
. In the case of any criminal proceeding, had no reasonable cause to
believe that his or her conduct was unlawful.
The Colorado Business Corporation Act further provides for mandatory
indemnification of directors and officers who are successful on the merits or
otherwise in litigation. The statute limits the indemnification that a
corporation may provide to its directors in a derivative action in which the
director is held liable to the corporation, or in any proceeding in which the
director is held liable on the basis of his improper receipt of a personal
benefit.
In addition, we may enter into agreements with our directors providing
contractually for indemnification consistent with the articles of incorporation
and bylaws. Currently, we have no such agreements. The Colorado Business
Corporation Act also authorizes us to purchase insurance for our directors and
officers insuring them against risks as to which we may be unable lawfully to
indemnify them. We have obtained limited insurance coverage for our officers and
directors as well as insurance coverage to reimburse us for potential costs of
our corporate indemnification of officers and directors.
As far as exculpation or indemnification for liabilities arising under the
Securities Act be permitted for directors and officers and controlling persons,
we have been advised that in the opinion of the SEC such exculpation or
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable.
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LEGAL MATTERS
The legality of the issuance of shares we are offering will be passed upon
by Faegre & Benson LLP, Denver, Colorado.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule as of December 31, 1999 and 1998 and for each
of the three years in the period ended December 31, 1999, included in our Annual
Report on Form 10-KSB/A for the year ended December 31, 1999, as set forth in
their report, which is incorporated by reference in this prospectus and
elsewhere in the registration statement. Our consolidated financial statements
and schedule are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
TRANSFER AGENT AND WARRANT AGENT
Our stock transfer agent and warrant agent is Computershare Investor
Services, Inc., Suite Z-2, Lakewood, CO 80228.
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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:
Approximate
Item Expense
Legal Fees 10,000*
Accounting Fees and Expenses 5,000*
Transfer Agent's Fees 1,675*
Miscellaneous Expenses 500*
-------
Total $17,175
* 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
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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(1) Restated articles of incorporation of ACT April 15, 1996, as
amended October 18, 1999
3.2 (2) Bylaws of ACT, amended as of April 15, 1996
4.1(3) Form of specimen certificate for common stock of ACT
5 and 23.1 Opinion and consent of counsel
10.1(3) Stock option plan of 1991, as amended, authorizing 400,000 shares
of common stock for issuance under the plan
10.2(3) Form of stock option agreement
10.3(3) Form of common stock purchase warrant
10.10(3) Split dollar insurance agreement dated March 1, 1990, between
ACT and Gerald D. Van Eeckhout
10.11(3) Service agreement dated April 10, 1992 between David Holden and
ACT Teleconferencing Limited
10.19(4) Stock option plan of 1996, as amended
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
10.28(8) Stock option plan of 2000
23.2 Consent of Ernst & Young LLP
(1) Incorporated by reference, attached as an exhibit of the same number
to our Form 10-QSB for the quarter ended September 30, 1999, Filed with the
Securities and Exchange Commission on November 12, 1999, File No. 0-27560.
(2) Incorporated by reference, attached as an exhibit of the same number
to our Form 10-QSB for the quarter ended 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
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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.
(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, and
amended and attached as exhibit 4.6 to our Form S-8, filed on July 2, 1998,
File 333-58403.
(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 an exhibit of the same number to
our Amendment No. 1 to Form 10-QSB for the quarter ended 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.
(8) Incorporated by reference, attached as appendix A to our Schedule
14A Information filed with the SEC on May 12, 2000, File No. 0-27560.
Item 17. Undertakings.
We hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement;
(c) 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.
Provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in
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periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) 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
statement, and the offering of the securities at that time shall be deemed to be
the initial bona fide offering of the securities.
(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
this offering.
That, for purposes of determining any liability under the Securities Act,
each filing of our 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 in the registration statement, 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.
Signatures
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable ground to believe that it meets all
the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned thereunto on November
13, 2000.
ACT Teleconferencing, Inc
Registrant
By:
/s/ Gerald A. Van Eeckhout
--------------------------------
Gerald D. Van Eeckhout
Chairman and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed on by the following person in the
capacities and on the dates indicated.
Signature Title
/s/ Gerald D. Van Eeckhout Chairman and Chief Executive Officer
------------------------------- (Principal Executive Officer)
Gerald D. Van Eeckhout
incipal
/s/ Gavin J. Thomson Chief Financial Officer and Secretary
------------------------------- (Principal Financial and Accounting
Gavin J. Thomson Officer)
/s/ James F. Seifert
------------------------------- Director
James F. Seifert
/s/ Donald L. Sturtevant
------------------------------- Director
Donald L. Sturtevant
/s/ Ronald J. Bach
------------------------------- Director
Ronald J. Bach
/s/ Carolyn R. Van Eeckhout
------------------------------- Director
Carolyn R. Van Eeckhout
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Index of Exhibits
All exhibits are filed electronically, unless incorporated by reference.
Exhibit No. Description
------------ -----------
3.1(1) Restated articles of incorporation of ACT April 15, 1996, as
amended October 18, 1999
3.2 (2) Bylaws of ACT, amended as of April 15, 1996
4.1(3) Form of specimen certificate for common stock of ACT
5 and 23.1 Opinion and consent of counsel
10.1(3) Stock option plan of 1991, as amended, authorizing 400,000 shares
of common stock for issuance under the plan 10.2(3) Form of
stock option agreement
10.3(3) Form of common stock purchase warrant
10.10(3) Split dollar insurance agreement dated March 1, 1990, between
ACT and Gerald D. Van Eeckhout
10.11(3) Service agreement dated April 10, 1992 between David Holden and
ACT Teleconferencing Limited
10.19(4) Stock option plan of 1996, as amended
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
10.28(8) Stock option plan of 2000
23.2 Consent of Ernst & Young LLP
(1) Incorporated by reference, attached as an exhibit of the same number
to our Form 10-QSB for the quarter ended September 30, 1999, Filed with the
Securities and Exchange Commission on November 12, 1999, File No. 0-27560.
(2) Incorporated by reference, attached as an exhibit of the same number
to our Form 10-QSB for the quarter ended 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 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.
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(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, and
amended and attached as exhibit 4.6 to our Form S-8, filed on July 2, 1998,
File 333-58403.
(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 an exhibit of the same number to
our Amendment No. 1 to Form 10-QSB for the quarter ended 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.
(8) Incorporated by reference, attached as appendix A to our Schedule
14A Information filed with the SEC on May 12, 2000, File No. 0-27560.
25
