As filed with the Securities and Exchange Commission on October 5, 1999
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
TALK.COM INC.
(Exact name of registrant as specified in its charter)
DELAWARE 23-2827736
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
12020 SUNRISE VALLEY DRIVE
RESTON, VIRGINIA 20190
(702) 391-7500
(Address and telephone number of registrant's principal executive offices)
OPTION AGREEMENTS GRANTED TO EMPLOYEES AND DIRECTORS
OF TALK.COM INC. AND ITS SUBSIDIARIES
(Full title of the plan)
ALOYSIUS T. LAWN, IV.
GENERAL COUNSEL AND SECRETARY
TALK.COM INC.
12020 SUNRISE VALLEY DRIVE
RESTON, VIRGINIA 20190
(702) 391-7500
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
-----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Aggregate Amount of Registration
Registered Registered Offering Price Per Offering Price(3) Fee
Share(2)
===============================================================================================================================
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value,
including associated Rights to 1,025,000 $10.03 $10,280,313 $2,858
purchase Series A Junior
Participating Preferred Stock(1)
===============================================================================================================================
</TABLE>
(1) No separate consideration will be received for the Rights, which initially
will trade together with the Common Stock.
(2) The shares of Common Stock may be acquired upon the exercise of options to
purchase an aggregate of such number of shares granted prior to the date
hereof to employees and directors of Talk.com Inc. and its subsidiaries at
prices ranging from $8.75 to $11.75 per share. Pursuant to Rule 457(h)(1),
the proposed maximum offering price per share is computed on the basis of
the weighted average exercise price per share of Common Stock.
(3) Pursuant to Rule 457(h)(1), the aggregate offering price is computed
on the basis of the prices at which the options may be exercised.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Talk.com Inc. ("Company" or
"Registrant"), unless otherwise indicated, with the Securities and Exchange
Commission ("Commission") are hereby incorporated herein by reference:
1. the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
2. Amendment No. 1 to the Company's Annual Report on Form 10-K/A for
the fiscal year ended December 31, 1998;
3. the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999 and June 30, 1999;
4. the Company's Current Reports on Form 8-K dated January 20, 1999
and August 27, 1999;
5. the description of the Company's Common Stock and the Company's
Rights contained in the Company's registration statements on Form
8-A, pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended, filed on September 8, 1995 and August 27, 1999,
respectively.
All documents filed by the Company after the date of this Registration
Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all of
the Company's Common Stock offered hereby has been sold or which withdraws from
registration such Common Stock then remaining unsold, shall be deemed to be
incorporated in this Registration Statement by reference and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this Registration Statement modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or so superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law provides, in substance, that
Delaware corporations shall have the power, under specified circumstances, to
indemnify their directors, officers, employees and agents in connection with
actions or suits by or in the right of the corporation, by reason of the fact
that they were or are such directors, officers, employees and agents, against
expenses (including attorneys' fees) and, in the case of actions, suits or
proceedings brought by third parties, against judgment, fines and amounts paid
in settlement actually and reasonably incurred in any such action, suit or
proceeding.
The Registrant's Bylaws also provide for indemnification to the fullest
extent permitted by the Delaware General Corporation Law. Reference is made to
the Registrant's Bylaws.
As permitted by the Delaware General Corporation Law, the Registrant's
Bylaws eliminate the personal liability of its directors to the Registrant and
its stockholders, in certain circumstances, for monetary damages arising
<PAGE>
from a breach of the director's duty of care. Additionally, the Registrant has
entered into indemnification agreements with some of its directors and officers.
These agreements provide for indemnification to the fullest extent permitted by
law and, in certain respects, may provide greater protection than that
specifically provided for by the Delaware General Corporation Law. The
agreements do not provide indemnification for, among other things, conduct that
is adjudged to be fraud, deliberate dishonesty or willful misconduct.
The Registrant has purchased an insurance policy that purports to
insure the officers and directors against certain liabilities incurred by them
in the discharge of their functions as officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
Exhibit 5.1 Opinion of Aloysius T. Lawn, IV, General Counsel and
Secretary of Talk.com Inc. with respect to the validity
of the Common Stock being registered.
Exhibit 23.1 Consent of BDO Seidman, LLP, certified public
accountants.
Exhibit 23.2 Consent of Aloysius T. Lawn, IV (included in Exhibit
5.1).
Exhibit 24.1 Power of attorney of the directors and certain officers
of the Company (included in the signature page of this
Registration Statement at page II-4).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
II-2
<PAGE>
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement;
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering;
4. That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to any existing provision or arrangement
whereby the Registrant may indemnify a director, officer or controlling person
of the Registrant against liabilities arising under the Securities Act, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Fairfax, Commonwealth of Virginia, on the 4th day
of October, 1999.
TALK.COM INC.
By: /s/ Gabriel A. Battista
-------------------------------
Gabriel A. Battista
Chairman of the Board, President
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Gabriel A. Battista and Aloysius
T. Lawn, IV, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments or supplements (including
post-effective amendments) to this Registration Statement, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or either of
them, or their or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Gabriel A. Battista Chairman of the Board, Chief Executive October 4, 1999
- ---------------------------------- Officer, President and Director (Principal
Gabriel A. Battista Executive Officer)
/s/ Edward B. Meyercord Chief Financial Officer October 4, 1999
- ---------------------------------- (Principal Financial Officer)
Edward B. Meyercord
/s/ Kevin R. Kelly Controller (Principal Accounting Officer) October 4, 1999
- ----------------------------------
Kevin R. Kelly
Director October 4, 1999
- ----------------------------------
George P. Farley
/s/ Harold First Director October 4, 1999
- ----------------------------------
Harold First
/s/ Mark S. Fowler Director October 4, 1999
- ----------------------------------
Mark S. Fowler
/s/ Arthur J. Marks Director October 4, 1999
- ----------------------------------
Arthur J. Marks
/s/ Ronald R. Thoma Director October 4, 1999
- ----------------------------------
Ronald R. Thoma
</TABLE>
II-4
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
- -------------- -----------
<S> <C>
Exhibit 5.1 Opinion of Aloysius T. Lawn, IV, General Counsel and Secretary of
Talk.com Inc. with respect to the validity of the Common Stock being
registered.
Exhibit 23.1 Consent of BDO Seidman, LLP, certified public accountants.
Exhibit 23.2 Consent of Aloysius T. Lawn, IV (included in Exhibit 5.1).
Exhibit 24.1 Power of attorney of the directors and certain officers of the
Company (included in the signature page of this Registration
Statement at page II-4).
</TABLE>
EXHIBIT 5.1
October 4, 1999
Board of Directors
Talk.com Inc.
12020 Sunrise Valley Drive
Reston, Virginia 20190
Gentlemen:
I am general counsel to Talk.com, a Delaware corporation (the
"Company"), and have acted as such in connection with the Company's filing
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of
the Registration Statement on Form S-8 (the "Registration Statement"), relating
to the issuance of 1,025,000 shares (the "Option Shares") of the Company's
common stock, par value $0.01 per share, upon the exercise of certain
non-qualified stock options (collectively, the "Options") granted to employees
and directors of the Company and its subsidiaries.
I have examined such corporate records of the Company, including its
Amended and Restated Certificate of Incorporation, as amended, its Bylaws and
resolutions of its Board of Directors, as well as such other documents as I
deemed necessary for rendering the opinion hereinafter expressed.
On the basis of the foregoing, I am of the opinion that the Option
Shares have been duly authorized by the Board of Directors of the Company and,
upon exercise of the Options and payment of the option price of such Options as
provided therein, the Option Shares will be legally issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name therein.
Sincerely yours,
/s/ Aloysius T. Lawn, IV
-----------------------------
General Counsel and Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Talk.com Inc.
Reston, Virginia
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated February 22, 1999, except for Note 8, which is as of March 26, 1999,
relating to the consolidated financial statements and schedule of Talk.com Inc.
and subsidiaries (the "Company") appearing in the Company's Annual Report on
Form 10-K for the year ended December 31, 1998.
/s/ BDO Siedman, LLP
New York, New York
October 1, 1999
