As filed with the Securities and Exchange Commission on June 18, 2004
Registration No. 333- . . . .
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S - 8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ATSI COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
NEVADA 74-2849995
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8600 WURZBACH ROAD, SUITE 700W
SAN ANTONIO, TEXAS 78240
(Address of Principal Executive Offices) (Zip Code)
2004 STOCK COMPENSATION PLAN
(Full title of the plan)
ARTHUR L. SMITH
8600 WURZBACH ROAD, SUITE 700W
SAN ANTONIO, TEXAS 78240
With a Copy to
LAWRENCE E. WILSON
FRANKLIN, CARDWELL & JONES
1001 MCKINNEY, 18TH FLOOR
HOUSTON, TX 77002
(Name and address of agent for service)
(214) 614-7240
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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TITLE PROPOSED PROPOSED
OF SECURITIES AMOUNT TO MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED(1) BE REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
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Common Stock,
$.001 par value per share 7,500,000 $.75 $5,625,000 $712.69
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1 In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans(s) described
herein.
2 Pursuant to Rule 457(g) under the Securities Act of 1933, the offering
price of shares of Common Stock to be purchased pursuant to the Plan is
based on the highest price at which the warrants under the plan may be
exercise for the purposes of computing the filing fees.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company's Annual Report on Form 10-K for the year ended July 31, 2003,
Quarterly Report on Form 10-QSB for the quarters ended October 31, 2003 and
January 31, 2004, and the description of the Company's Common Stock included in
its registration statement on Form 10-SB filed August 21, 1997 pursuant to
Section 12(g) of the Securities Exchange Act of 1934 are incorporated herein by
reference. All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. The Company's Quarterly Reports on Form
10-QSB for the quarters ended October 31, 2003 and January 31, 2004, which is
incorporated herein by reference, should be read in conjunction with the audited
financial statements incorporated herein by reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection 1 of Section 78.037 of the Nevada Revised Statutes (the "Nevada
Law") empowers a corporation to eliminate or limit the personal liability of a
director or officer to the corporation or its stockholders for damages for
breach of fiduciary duty as a director or officer, but such a provision must not
eliminate or limit the liability of a director or officer for (a) acts or
omissions which involve intentional misconduct, fraud or a knowing violation of
law or (b) the payment of distributions in violation of Section 78.300 of the
Nevada Law.
Subsection 1 of Section 78.7502 of the Nevada Law empowers a corporation to
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 he or she 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 (an
"Indemnified Party"), against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
Indemnified Party in connection with such action, suit or proceeding
if the Indemnified Party acted in good faith and in a manner the Indemnified
Party reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceedings, had no
reasonable cause to believe the Indemnified Party's conduct was unlawful.
Subsection 2 of Section 78.7502 of the Nevada Law empowers a corporation to
indemnify any Indemnified Party who was or is a party or is threatened to be
made a party to 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 such person acted in the capacity of an Indemnified Party against
expenses, including amounts paid in settlement and attorneys' fees actually and
reasonably incurred by the Indemnified Party in connection with the defense or
settlement of such action or suit if the Indemnified Party acted under standards
similar to those set forth above, except that no indemnification may be made in
respect of any claim, issue or matter as to which the Indemnified Party shall
have been adjudged to be liable to the corporation or for amounts paid in
settlement to the corporation unless and only to the extent that the court in
which such action or suit was brought determines upon application that in view
of all the circumstances the Indemnified Party is fairly and reasonably entitled
to indemnity for such expenses as the court deems proper.
Section 78.7502 of the Nevada Law further provides that to the extent an
Indemnified Party has been successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to in subsection (1) or (2) described
above or in the defense of any claim, issue or matter therein, the corporation
shall indemnify the Indemnified Party against expenses (including attorneys'
fees) actually and reasonably incurred by the Indemnified Party in connection
therewith.
Subsection 1 of Section 78.751 of the Nevada Law provides that any
discretionary indemnification under Section 78.7502 of the Nevada Law, unless
ordered by a court or advanced pursuant to Subsection 2 of Section 78.751, may
be made by a corporation only as authorized in the specific case upon a
determination that indemnification of the Indemnified Person is proper in the
circumstances. Such determination must be made (a) by the stockholders, (b) by
the board of directors of the corporation by majority vote of a quorum
consisting of directors who were not parties to the action, suit or proceeding,
(c) if a majority vote of a quorum of such disinterested directors so orders, by
independent legal counsel in a written opinion, or (d) by independent legal
counsel in a written opinion if a quorum of such disinterested directors cannot
be obtained.
Subsection 2 of Section 78.751 of the Nevada Law provides that a
corporation's articles of incorporation or bylaws or an agreement made by the
corporation may require the corporation to pay as incurred and in advance of the
final disposition of a criminal or civil action, suit or proceeding, the
expenses of officers and directors in defending such action, suit or proceeding
upon receipt by the corporation of an undertaking by or on behalf of the officer
or director to repay the amount if it is ultimately determined by a court that
he is not entitled to be indemnified by the corporation. Said Subsection 2
further provides that the provisions of that Subsection 2 do
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not affect any rights to advancement of expenses to which corporate personnel
other than officers and directors may be entitled under contract or otherwise by
law.
Subsection 3 of Section 78.751 of the Nevada Law provides that
indemnification and advancement of expenses authorized in or ordered by a court
pursuant to said Section 78.751 does not exclude any other rights to which the
Indemnified Party may be entitled under the articles of incorporation or any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
for either an action in his official capacity or in another capacity while
holding his office. However, indemnification, unless ordered by a court pursuant
to Section 78.7502 or for the advancement of expenses under Subsection 2 of
Section 78.751 of the Nevada Law, may not be made to or on behalf of any
director or officer of the corporation if a final adjudication establishes that
his or her acts or omissions involved intentional misconduct, fraud or a knowing
violation of the law and was material to the cause of action. Additionally, the
scope of such indemnification and advancement of expenses shall continue as to
an Indemnified Party who has ceased to hold one of the positions specified
above, and shall inure to the benefit of his or her heirs, executors and
administrators.
Section 78.752 of the Nevada Law empowers a corporation to purchase and
maintain insurance or make other financial arrangements on behalf of an
Indemnified Party for any liability asserted against such person and liabilities
and expenses incurred by such person in his or her capacity as an Indemnified
Party or arising out of such person's status as an Indemnified Party whether or
not the corporation has the authority to indemnify such person against such
liability and expenses.
The above-described provisions relating to the exclusion of liability and
indemnification of directors and officers are sufficiently broad to permit the
indemnification of such persons in certain circumstances against liabilities
arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors and officers, and to persons controlling our
company pursuant to the foregoing provisions, we have been informed that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as a part of this Registration Statement
pursuant to Item 601 of Regulation S-B.
4.1 2004 Stock Compensation Plan.
5.1 Opinion of Franklin, Cardwell & Jones.
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23.1 Consent of Tanner + Co., independent public accountants.
23.2 Consent of Franklin, Cardwell & Jones (included in Exhibit 5.1).
24.1 Power of Attorney (included on Signature Page).
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 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 which remain unsold at the termination of
the offering.
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 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.
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 San Antonio, and the State of Texas, on June 18,
2004.
ATSI COMMUNICATIONS, INC.
/s/ Arthur L. Smith
By: ___________________________________
Arthur L. Smith
Chief Executive Officer
/s/ Antonio Estrada
By: ___________________________________
Antonio Estrada
Chief Financial Officer
Chief Accounting Officer
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Each person whose signature appears below constitutes and appoints Arthur
L. Smith and Antonio Estrada true and lawful attorneys-in-fact and agents, each
acting alone, with full powers of substitution and re-substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, each acting alone, full powers 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 said
attorneys-in-fact and agents, each acting alone, 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 below by the following persons in the capacities
indicated on June 18, 2004.
/s/ John R. Fleming /s/ Arthur L. Smith
______________________________ ________________________________
John R. Fleming Arthur L. Smith
Director Director
/s/ Murray R. Nye /s/ Richard C. Benkendorf
______________________________ ________________________________
Murray R. Nye Richard C. Benkendorf
Director Director
/s/ Michael G. Santry
________________________________
Michael G. Santry
Director
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EXHIBIT INDEX
4.1 2004 Stock Compensation Plan
5.1 Opinion of Franklin, Cardwell & Jones
23.1 Consent of Tanner + Co.
23.2 Consent of Franklin, Cardwell & Jones (included in Exhibit 5.1)
24.1 Power of Attorney (included on Signature Page)
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