As filed with the Securities and Exchange Commission on December 19, 2000
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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 20191
(702) 391-7500
(Address and telephone number of registrant's principal executive offices)
2000 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
ALOYSIUS T. LAWN, IV
GENERAL COUNSEL AND SECRETARY
TALK.COM INC.
12020 SUNRISE VALLEY DRIVE
RESTON, VIRGINIA 20191
(702) 391-7500
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
OF SECURITIES TO BE REGISTERED REGISTERED(2) SHARE(3) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 5,000,000 shares $1.8125 $9,062,500 $2,392.50
share(1)
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<FN>
(1) Includes the associated rights to purchase Series A Junior Participating Preferred Stock. No separate consideration will be
received for the rights, which initially will trade together with the Common Stock.
(2) Pursuant to Rule 416, there are also being registered such additional shares of Common Stock of the registrant as may be
issuable in the case of stock splits, stock dividends and similar transactions, as provided in the 2000 Long-Term Incentive
Plan.
(3) Estimated solely for purposes of calculating the amount of the registration fee, pursuant to paragraphs (c) and (h) of Rule
457, on the basis of the average of the high and low sale prices of the shares of Common Stock of the registrant on the
Nasdaq National Market on December 18, 2000.
</FN>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Talk.com Inc. (the "Company" or the
"Registrant") with the SEC are hereby incorporated herein by reference:
o the Company's annual report on Form 10-K for the fiscal year ended
December 31, 1999, filed with the SEC on March 23, 2000 (SEC file
no. 0-26728);
o Amendment No. 1 to the Company's annual report on Form 10-K for the
fiscal year ended December 31, 1999, filed with the SEC on April 28,
2000 (SEC file no. 0-26728);
o the Company's quarterly report on Form 10-Q for the fiscal quarter
ended March 31, 2000, filed with the SEC on May 15, 2000 (SEC file
no. 0-26728);
o the Company's quarterly report on Form 10-Q for the fiscal quarter
ended June 30, 2000, filed with the SEC on August 14, 2000 (SEC file
no. 0-26728);
o the Company's quarterly report on Form 10-Q for the fiscal quarter
ended September 30, 2000, filed with the SEC on November 14, 2000
(SEC file no. 0-26728);
o the Company's current report on Form 8-K, filed with the SEC on
April 7, 2000 (SEC file no. 0-26728);
o the Company's current report on Form 8-K, filed with the SEC on
August 3, 2000 (SEC file no. 0-26728);
o the Company's current report on Form 8-K, filed with the SEC on
August 11, 2000 (SEC file no. 0-26728);
o the Company's current report on Form 8-K, filed with the SEC on
September 13, 2000 (SEC file no. 0-26728);
o the description of the Company's capital stock contained in its
registration statement on Form 8-A, dated September 8, 1995; and
o the description of the Company's preferred stock purchase rights
contained in its registration statement on Form 8-A, filed with the
SEC on August 27, 1999.
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 be a part hereof
from the date of filing 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.
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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.
Aloysius T. Lawn, IV, General Counsel and Secretary, has rendered an opinion to
the effect that the shares of common stock subject to this Registration
Statement are duly authorized and, as or when issued in accordance with the
terms of the plan and/or the agreements, have been or will be legally issued,
fully paid and non-assessable. As of December 1, 2000, Mr. Lawn owns 88,650
shares of common stock and options covering 572,500 shares of Common Stock
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), a Delaware corporation may indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe that his
or her conduct was unlawful.
A Delaware corporation may indemnify any person in connection with any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action, except that no indemnification may be made with respect thereto
unless, and then only to the extent that, a court of competent jurisdiction
determines upon application that the person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
A Delaware corporation must indemnify any present or former director or
officer who is successful on the merits or otherwise in defense of any action,
suit or proceeding referred to above against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
A Delaware corporation may pay for the expenses (including attorneys'
fees) incurred by an officer or director in defending any such action, suit or
proceeding in advance of final disposition upon receipt of an undertaking by or
on behalf of such officer or director to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
corporation.
Article VI of the Bylaws of the Company provides for indemnification of
its directors and executive officers to the maximum extent permitted by the
DGCL. Additionally, the Company has entered into indemnification agreements with
certain
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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 providing
indemnification for, among other things, conduct which is adjudged to be fraud,
deliberate dishonesty or willful misconduct.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for any
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) with respect to certain unlawful dividend
payments or stock redemptions or repurchases or (iv) for any transaction from
which the director derived an improper personal benefit. Article Ninth of the
Company's Certificate of Incorporation eliminates the liability of directors to
the fullest extent permitted by Section 102(b)(7) of the DGCL.
Section 145 of the DGCL permits a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other employee against any liability asserted against
such person and incurred by such person in such capacity, or arising out of
their status as such, whether or not the corporation would have the power to
indemnify directors and officers against such liability. The Company 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.
The exhibits listed on the Index of Exhibits on page II-6 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(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 registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth
in the 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 and 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
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offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the registration statement is on Form
S-3, Form S-8 or Form F-3, and 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
registrar 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 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 the registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for 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 the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 12th day
of December, 2000.
TALK.COM INC.
By: /s/ Gabriel A. Battista
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Gabriel A. Battista
Chairman of the Board, 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 or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her 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 or she 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 or her 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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Gabriel A. Battista Chairman of the Board, Chief Executive Officer December 13, 2000
--------------------------------------- and Director (Principal Executive Officer)
Gabriel A. Battista
/s/ Kenneth G. Baritz
--------------------------------------- President and Director December 13, 2000
Kenneth G. Baritz
/s/ Edward B. Meyercord, III Chief Operating Officer, Chief Financial December 13, 2000
--------------------------------------- Officer and Treasurer (Principal Financial
Edward B. Meyercord, III Officer)
/s/ Janet C. Kirschner
--------------------------------------- Controller (Principal Accounting Officer) December 13, 2000
Janet C. Kirschner
/s/ Mark S. Fowler
--------------------------------------- Director December 13, 2000
Mark S. Fowler
/s/ Arthur J. Marks
--------------------------------------- Director December 13, 2000
Arthur J. Marks
/s/ Ronald R. Thoma
--------------------------------------- Director December 13, 2000
Ronald R. Thoma
</TABLE>
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INDEX OF EXHIBITS
EXHIBIT NUMBER DESCRIPTION
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Exhibit 4.1 2000 Long-Term Incentive Plan (incorporated by reference to
Exhibit 10.31 to Talk.com Inc.'s Registration Statement on
Form S-4 (File No. 333-40980)).
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, independent 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-5).
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