UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AccessTel, Inc.
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(Exact name of registrant as specified in its charter)
Colorado 59-2159271
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(State or jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
101 West Mineral Avenue, Littleton, Colorado 80120
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(Address of Principal Executive Offices) (Zip Code)
Non-Employee Directors and Consultants Retainer Stock Plan for the Year 2003
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(Full title of the plan)
Mr. Randall L. Middleton
101 West Mineral Avenue
Littleton, Colorado 80120
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(Name and address of agent for service)
(303) 831-9854
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum
Title of securities to Amount to be maximum offering aggregate offering Amount of
be registered registered price per share* price registration fee
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Common Stock, par value 3,500,000 $0.32 $1,120,000 $103.04
$0.001 per share
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Total 3,500,000 $1,120,000 $103.04
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*Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the General Rules and Regulations promulgated under
the Securities Act of 1933. Pursuant to Rule 457(h), based upon the average of
the high and low bid prices for the common stock on the OTC Bulletin Board on
December 29, 2003, of $.32.
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
See Item 2. below.
Item 2. Registrant Information and Employee Plan Annual Information.
The registrant will deliver, or cause to be delivered, the documents
containing the information specified in Part I, Items 1. and 2., of Form S-8 to
each participant in the Registrant's Non-Employee Directors and Consultants
Retainer Stock Plan for the Year 2003 in accordance with Form S-8 and Rule 428
of the General Rules and Regulations promulgated under the Securities Act of
1933. The registrant will also provide a written statement to participants
advising them that, upon written or oral request, the Registrant will make
available to them, without charge, (i) the documents incorporated by reference
in Item 3. of Part II of this registration statement and (ii) other documents
required to be delivered pursuant to Rule 428(b). The statement will inform the
participants that these documents are incorporated by reference in the Section
10(a) prospectus and will include the address (giving title or department) and
telephone number to which the request is to be directed.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following are incorporated by reference in this registration statement:
(a) The registrant's latest annual report on Form 10-KSB for the fiscal
year ended December 31, 2002, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934 on May 21, 2003.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
annual report on Form 10-KSB referred to in (a) above.
(c) The description of the registrant's common stock contained in the
registration statement on Form 10-SB filed by the registrant to register the
common stock under Section 12 of the Securities Exchange Act of 1934, including
all amendments filed for the purpose of updating the description.
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All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment that indicates that all securities offered
have been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to
be part hereof from the date of filing of the documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Neither our Articles of Incorporation nor our Bylaws contain a provision
entitling any director or officer to indemnification against liability under the
Securities Act of 1933. The Utah Code, as amended, permits us to indemnify our
officers, directors, employees and agents from any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, except under certain circumstances. Indemnification may only
occur if a determination has been made that the officer, director, employee or
agent acted in good faith and in a manner that the person believed to be in the
best interests of the registrant. A determination may be made by the
stockholders; by a majority of the directors who are not parties to the action,
suit or proceeding; or by opinion of independent legal counsel in the event a
quorum of directors who are not a party to the action, suit or proceeding does
not exist.
Provided the terms and conditions of these provisions under Utah law are
met, officers, directors, employees and agents of the registrant may be
indemnified against any cost, loss or expense arising out of any liability under
the Securities Act of 1933. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant, we have been advised that, in the opinion
of the Securities and Exchange Commission, the indemnification is against public
policy and is, therefore, unenforceable.
The Utah Code, as amended, provides further for permissive indemnification
of officers and directors as follows:
16-10a-902. Authority to indemnify directors.
(1) Except as provided in Subsection (4), a corporation may indemnify an
individual made a party to a proceeding because he is or was a director, against
liability incurred in the proceeding if:
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(a) his conduct was in good faith; and
(b) he reasonably believed that his conduct was in, or not opposed to,
the corporation's best interests; and
(c) in the case of any criminal proceeding, he had no reasonable cause
to believe his conduct was unlawful.
(2) A director's conduct with respect to any employee benefit plan for a
purpose he reasonably believed to be in or not opposed to the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of Subsection (1)(b).
(3) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(4) A corporation may not indemnify a director under this section:
(a) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation;
or
(b) in connection with any other proceeding charging that the director
derived an improper personal benefit, whether or not involving action in
his official capacity, in which proceeding he was adjudged liable on the
basis that he derived an improper personal benefit.
(5) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
16-10a-903. Mandatory indemnification of directors.
Unless limited by its articles of incorporation, a corporation shall
indemnify a director who was successful, on the merits or otherwise, in the
defense of any proceeding, or in the defense of any claim, issue, or matter in
the proceeding, to which he was a party because he is or was a director of the
corporation, against reasonable expenses incurred by him in connection with the
proceeding or claim with respect to which he has been successful.
16-10a-904. Advance of expenses for directors.
(1) A corporation may pay for or reimburse the reasonable expenses incurred
by a director who is a party to a proceeding in advance of final disposition of
the proceeding if:
(a) the director furnishes the corporation a written affirmation of
his good faith belief that he has met the applicable standard of conduct
described in Section 16-10a-902;
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(b) the director furnishes to the corporation a written undertaking,
executed personally or on his behalf, to repay the advance if it is
ultimately determined that he did not meet the standard of conduct; and
(c) a determination is made that the facts then known to those making
the determination would not preclude indemnification under this part.
(2) The undertaking required by Subsection (1)(b) must be an unlimited
general obligation of the director but need not be secured and may be accepted
without reference to financial ability to make repayment.
(3) Determinations and authorizations of payments under this section shall
be made in the manner specified
16-10a-905. Court-ordered indemnification of directors.
Unless a corporation's articles of incorporation provide otherwise, a
director of the corporation who is or was a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court, after giving
any notice the court considers necessary, may order indemnification in the
following manner:
(1) if the court determines that the director is entitled to mandatory
indemnification under Section 16-10a-903, the court shall order indemnification,
in which case the court shall also order the corporation to pay the director's
reasonable expenses incurred to obtain court-ordered indemnification; and
(2) if the court determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the director met the applicable standard of conduct set forth in Section
16-10a-902 or was adjudged liable as described in Subsection 16-10a-902(4), the
court may order indemnification as the court determines to be proper, except
that the indemnification with respect to any proceeding in which liability has
been adjudged in the circumstances described in Subsection 16-10a-902(4) is
limited to reasonable expenses incurred.
16-10a-906. Determination and authorization of indemnification of
directors.
(1) A corporation may not indemnify a director under Section 16-10a-902
unless authorized and a determination has been made in the specific case that
indemnification of the director is permissible in the circumstances because the
director has met the applicable standard of conduct set forth in Section
16-10a-902. A corporation may not advance expenses to a director under Section
16-10a-904 unless authorized in the specific case after the written affirmation
and undertaking required by Subsections 16-10a-904(1)(a) and (b) are received
and the determination required by Subsection 16-10a-904(1)(c) has been made.
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(2) The determinations required by Subsection (1) shall be made:
(a) by the board of directors by a majority vote of those present at a
meeting at which a quorum is present, and only those directors not parties
to the proceeding shall be counted in satisfying the quorum; or
(b) if a quorum cannot be obtained as contemplated in Subsection
(2)(a), by a majority vote of a committee of the board of directors
designated by the board of directors, which committee shall consist of two
or more directors not parties to the proceeding, except that directors who
are parties to the proceeding may participate in the designation of
directors for the committee;
(c) by special legal counsel:
(i) selected by the board of directors or its committee in the
manner prescribed in Subsection (a) or (b); or
(ii) if a quorum of the board of directors cannot be obtained
under Subsection (a) and a committee cannot be designated under
Subsection (b), selected by a majority vote of the full board of
directors, in which selection directors who are parties to the
proceeding may participate; or
(d) by the shareholders, by a majority of the votes entitled to
be cast by holders of qualified shares present in person or by proxy
at a meeting.
(3) A majority of the votes entitled to be cast by the holders of all
qualified shares constitutes a quorum for purposes of action that complies with
this section. Shareholders' action that otherwise complies with this section is
not affected by the presence of holders, or the voting, of shares that are not
qualified shares.
(4) Unless authorization is required by the bylaws, authorization of
indemnification and advance of expenses shall be made in the same manner as the
determination that indemnification or advance of expenses is permissible.
However, if the determination that indemnification or advance of expenses is
permissible is made by special legal counsel, authorization of indemnification
and advance of expenses shall be made by a body entitled under Subsection (2)(c)
to select legal counsel.
16-10a-907. Indemnification of officers, employees, fiduciaries, and
agents.
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Unless a corporation's articles of incorporation provide otherwise:
(1) an officer of the corporation is entitled to mandatory indemnification
under Section 16-10a-903, and is entitled to apply for court-ordered
indemnification under Section 16-10a-905, in each case to the same extent as a
director;
(2) the corporation may indemnify and advance expenses to an officer,
employee, fiduciary, or agent of the corporation to the same extent as to a
director; and
(3) a corporation may also indemnify and advance expenses to an officer,
employee, fiduciary, or agent who is not a director to a greater extent, if not
inconsistent with public policy, and if provided for by its articles of
incorporation, bylaws, general or specific action of its board of directors, or
contract.
The Registrant, with approval of the Registrant's Board of Directors, may
obtain directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits required by Item 601 of Regulation S-K, and an index thereto,
are attached to this registration statement.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this 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.
(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 that remain unsold at the termination of
the offering.
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(b) 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 section 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) To deliver or cause to be delivered with the prospectus, to each person
to whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in the
prospectus, to deliver or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information
(d) That, 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 City of Littleton, Colorado, on December 29, 2003.
ACCESSTEL, INC.
By: /s/ Randall L. Middleton
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Randall L. Middleton, President
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 date indicated.
Date: December 29, 2003 /s/ Randall L. Middleton
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Randall L. Middleton, President and
Director (Principal Executive Officer)
Date: December 29, 2003 /s/ Thomas Rowan
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Thomas Rowan, Secretary, Treasurer and
Director (Principal Financial and Accounting
Officer)
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EXHIBIT INDEX
The following Exhibits are filed as part of this Registration Statement on
Form S-8.
Exhibit No. Description
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4* Non-Employee Directors and Consultants Retainer Stock Plan for
the Year 2003
5* Opinion and Consent of Cudd & Associates
23.1* Consent of Radin, Glass & Co., LLP
23.2* Consent of Cudd & Associates (included in Exhibit 5 hereto)
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*Filed herewith.
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