As filed with the Securities and Exchange Commission on July 23, 2004
Registration No. 333-116498
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ZANNWELL INC.
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(Exact name of registrant as specified in its charter)
NEVADA 88-0408213
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(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1549 N. LEROY STREET, SUITE D-1000, FENTON, MICHIGAN 48430
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(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED ZANNWELL INC. 2004 EMPLOYEE STOCK INCENTIVE PLAN
AMENDED AND RESTATED ZANNWELL INC. 2004 NON-EMPLOYEE DIRECTORS
AND CONSULTANTS RETAINER STOCK PLAN
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(Full title of the plan)
Robert C. Simpson
President and Chairman of the Board
1549 N. Leroy Street, Suite D-1000
Fenton, Michigan 48430
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(Name and address of agent for service)
(810) 714-2978
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(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered(1) per share price fee(2)
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Common Stock, $.001 par value to be issued pursuant 207,500,000 shares $0.03 $6,225,000 $788.71
to the Amended and Restated ZannWell Inc. 2004
Employee Stock Incentive Plan and the Amended and
Restated ZannWell Inc. 2004 Non-Employee Directors
and Consultants Retainer Stock Plan
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(1) This Registration Statement shall also cover any additional shares of
common stock which become issuable under the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of our outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended, based upon the last sale of the Registrant's common stock on
June 1, 2004, as reported in the over-the-counter market.
(3) 7,500,000 of the shares authorized under the plans were registered on June
15, 2004 pursuant to the original Registration Statement 333-116498. A fee
of $28.51 was paid in connection with the original Registration Statement.
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EXPLANATORY NOTE
AMENDED AND RESTATED ZANNWELL INC.
2004 EMPLOYEE STOCK INCENTIVE PLAN AND
AMENDED AND RESTATED ZANNWELL INC.
2004 NON-EMPLOYEE DIRECTORS AND CONSULTANTS RETAINER STOCK PLAN
On June 15, 2004, we filed with the Securities and Exchange Commission
(SEC) a Registration Statement No. 333-116498 on Form S-8, pertaining to our
2004 Employee Stock Incentive Plan and our 2004 Non-Employee Directors and
Consultants Retainer Stock Plan. This Post-Effective Amendment No. 1 to our Form
S-8 No. 333-116498 is being filed to register the issuance of additional shares
pursuant to an increase in the number of shares of common stock available for
issuance pursuant to options granted under our 2004 Employee Stock Incentive
Plan from 6,000,000 to 186,000,000 and to register the issuance of additional
shares pursuant to an increase in the number of shares of common stock and
options to purchase common stock available for issuance under our 2004
Non-Employee Directors and Consultants Retainer Stock Plan from 1,500,000 to
21,500,000.
We registered 6,000,000 shares of common stock available for issuance
pursuant to options granted under our 2004 Employee Stock Incentive Plan and
1,500,000 shares of common stock and options to purchase common stock available
for issuance under our Non-Employee Directors and Consultants Retainer Stock
Plan on our Registration Statement No. 333-116498 on Form S-8, filed with the
SEC on June 15, 2004. Since June 15, 2004, options to purchase 6,000,000 shares
of common stock have been issued under our 2004 Employee Stock Incentive Plan
and 1,500,000 shares of common stock have been issued under our Non-Employee
Directors and Consultants Retainer Stock Plan. This left no shares available for
issuance pursuant to options granted under our 2004 Employee Stock Incentive
Plan and no shares of common stock and options to purchase common stock
available for issuance under our 2004 Non-Employee Directors and Consultants
Retainer Stock Plan. This Post-Effective Amendment registers an additional
180,000,000 shares available for issuance pursuant to options under our 2004
Employee Stock Incentive Plan and 20,000,000 shares of common stock and options
to purchase common stock available for issuance under our 2004 Non-Employee
Directors and Consultants Retainer Stock Plan.
Except as described above, no other changes have been made to our Form
S-8 Registration Statement No. 333-116498. For the convenience of the reader and
as required under SEC rules, this Post-Effective Amendment to Form S-8 sets
forth the complete text of Form S-8 rather than just the amended portions
thereof. To preserve the nature and character of the disclosures set forth in
these Items as originally filed, this Post-Effective Amendment to Form S-8
continues to speak as of June 15, 2004, and we have not updated the disclosures
in this Post-Effective Amendment to speak as of a later date or to reflect
events that occurred at a later date. For Items not modified herein, reference
should be made to our Registration Statement No. 333-116498 on Form S-8 as filed
with the SEC on June 15, 2004. The filing of this Post-Effective Amendment is
not an admission that our Registration Statement No. 333-116498 on Form S-8,
when filed, knowingly included any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made therein
not misleading.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The SEC allows us to "incorporate by reference" the information 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
an important part of this prospectus, and 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 made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) the Securities Exchange Act of 1934:
1. Our Annual Report on Form 10-KSB for the fiscal year ended December
31, 2003.
2. Our Quarterly Report on Form 10-QSB for the quarter ended March 31,
2004.
3. All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended, since
December 31, 2003; and
4. The description of the our common stock, $.001 par value, contained
in our Registration Statement on Form 10-SB, including any
amendments or reports filed for the purpose of updating such
description.
5. All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all of the securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein as
set forth above 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 incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address: Robert C. Simpson, President, 1549 N.
Leroy Street, Suite D-1000, Fenton, Michigan 48430; (810) 714-2978.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Spectrum Law Group, LLP and certain affiliates of Spectrum Law Group, LLP
may be issued shares of our common stock pursuant to this offering.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
NEVADA STATUTES
Section 78.7502 of the Nevada Revised Statutes, as amended, provides for
the indemnification of the Company's officers, directors, employees and agents
under certain circumstances as follows:
"1. A 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,
except an action by or in the right of the corporation, by reason of the fact
that he 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 him in
connection with the action, suit or proceeding if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he 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 his conduct was
unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, does
not, of itself, create a presumption that the person is liable pursuant to NRS
78.138 or did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, or that, with
respect to any criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
2. A 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 or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he 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 amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
corporation.
Indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, 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 the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
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3. To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense. (Added to NRS by 1997, 694; A 2001, 3175)"
ARTICLES OF INCORPORATION
Our Articles of Incorporation provide that no director of our corporation
shall have personal liability to us or any of our stockholders for monetary
damages for breach fiduciary duty as a director or officers involving any act or
omission of any such direcrot or officer; provided, however, that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to us or our stockholders, (ii) for acts or
omissions not in good faith or, which involve intentional misconduct or a
knowing violation of law, (iii) under applicable Sections of the Nevada Revised
Statutes, (iv) the payment of dividends in violation of Section 78.300 of the
Nevada Revised Statutes or (v) for any transaction from which the director
derived an improper personal benefit. Our Bylaws also contain a provision for
the indemnification of our directors (see "Indemnification of Directors and
Officers - Bylaws" below).
BYLAWS
Our Bylaws provide for the indemnification of our directors, officers,
employees, or agents under certain circumstances as follows:
"ARTICLE V: INDEMNITY
Section 1. Definitions. For purposes of this Article, "Indemnity" shall
mean each Director or Officer who was or is a party to, or is threatened to be
made a part to, or is otherwise involved in, any Proceeding (as hereinafter
defined), by reason of the fact that he or she is or was a Director or Officer
of this Corporation or is or was serving in any capacity at the request of this
Corporation as a Director, Officer, employee, agent, partner, or fiduciary of,
or in any other capacity for, another corporation, partnership, joint venture,
trust, or other enterprise. The term "Proceeding" shall mean any threatened,
pending, or completed action or suit (including, without limitation, an action,
suit or proceeding by or in the right of this Corporation', whether civil,
criminal, administrative or investigative.
Section 2. Indemnification. Each Indemnitee shall be indemnified and held
harmless by this Corporation for all actions taken by him or her, and for all
omissions (regardless of the date of any such action or omission), to the
fullest extent permitted by Nevada law, against all expense, liability and loss
(including, without limitation, attorney fees, judgments, fines, taxes,
penalties, and amounts paid or to be paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with any Proceeding. Indemnification
pursuant to this Section shall continue as to an Indemnitee who has ceased to be
a Director or Officer and shall inure to the benefit of his or her heirs,
executors and administrators. This Corporation may, by action of its Board of
Directors, and to the extent provided in such action, indemnify employees and
other persons as though they were Indemnitees. The rights to indemnification as
provided in this Article shall be non-exclusive of any other rights that any
person may have or hereafter acquire under an statute, provision of this
Corporation's Articles of Incorporation or Bylaws, agreement, vote of
stockholders or Directors, or otherwise.
Section 3. Financial Arrangements. This Corporation may purchase and
maintain insurance or make other financial arrangements on behalf of any person
who is or was a Director, Officer, employee or agent of this Corporation, or is
or was serving at the request of this Corporation in such capacity for another
corporation, partnership, joint venture, trust or other enterprise for any
liability asserted against him or her and liability and expenses incurred by him
or her in such capacity, whether or not this Corporation has the authority to
indemnify him or her against such liability and expenses.
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The other financial arrangements which may be made by this Corporation may
include, but are not limited to, (a) creating a trust fund; (b) establishing a
program of self-insurance; (c) securing its obligation of indemnification by
granting a security interest or other lien on any of this Corporation's assets,
and (d) establishing a letter of credit, guarantee or surety. No financial
arrangement made pursuant to this section may provide protection for a person
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable for intentional misconduct, fraud, or a knowing
violation of law, except with respect to advancing, expenses or indemnification
ordered by a court. Any insurance or other financial arrangement made on behalf
of a person pursuant to this section may be provided by this Corporation or any
other person approved by the Board of Directors, even if all or part of the
other person's stock or other securities is owned by this Corporation. In the
absence of fraud:
(a) the decision of the Board of Directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement
made pursuant to this section, and the choice of the person to
provide the insurance or other financial arrangement is conclusive;
and
(b) the insurance or other financial arrangement is not void or
voidable; does not subject any Director approving it to personal
liability for his action; and even if a Director approving the
insurance or other financial arrangement is a beneficiary of the
insurance or other Financial arrangement.
Section 4. Contract of Indemnification. The provisions of this Article
relating to indemnification shall constitute a contract between this Corporation
and each of its Directors and Officers, which may be modified as to any Director
or Officer only with that person's consent or as specifically provided in this
section. Notwithstanding any other provision of the Bylaws relating to their
amendment generally, any repeal or amendment of this Article which is adverse to
any Director or Officer shall apply to such Director or Officer only on a
prospective basis and shall not limit the rights of an Indemnitee to
indemnification with respect to any action or failure to act occurring prior to
the time of such repeal or amendment. Notwithstanding any other provision of
these Bylaws, no repeal or amendment of these Bylaws shall affect any or all of
this Article so as to limit or reduce the indemnification in any manner unless
adopted by (a) the unanimous vote of the Directors of this Corporation then
serving, or (b) the stockholders as set forth in Article XII hereof, provided
that no such amendment shall have retroactive effect inconsistent with the
preceding sentence.
Section 5. Nevada Law. References in this Article to Nevada law or to any
provision thereof shall be to such law as it existed on the date these Bylaws
were adopted or as such law thereafter may be changed, provided that (a) in the
case of any change which expands the liability of an Indemnitee or limits the
indemnification rights or the rights to advancement of expenses which this
Corporation may provide, the rights to limited liability, to indemnification and
to the advancement of expenses provided in this Corporation's Articles of
Incorporation, these Bylaws, or both shall continue as theretofore to the extent
permitted by law; and (b) if such change permits this Corporation, without the
requirement of any further action by stockholders or Directors, to limit further
the liability of Indemnitees or to provide broader indemnification rights or
rights to the advancement of expenses than this Corporation was permitted to
provide prior to such change, liability thereupon shall be so limited and the
rights to indemnification and advancement of expenses shall be so broadened to
the extent permitted by law."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION
4.1 Amended and Restated ZannWell Inc. 2004 Employee Stock
Incentive Plan
4.2 Amended and Restated ZannWell Inc. 2004 Non-Employee Directors
and Consultants Retainer Stock Plan
5.1 Opinion of Spectrum Law Group, LLP re: legality of shares.
23.1 Consent of Spectrum Law Group, LLP (filed as Exhibit 5.1 herein).
23.2 Consent of Beckstead & Watts, LLP
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ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes to file during any period
in which offers or sales of the securities 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 or any
material change to such information set forth in the Registration Statement.
B. The undersigned registrant hereby undertakes that, for purposes 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.
C. The undersigned registrant hereby undertakes 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.
D. 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.
E. 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
THE REGISTRANT
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 Fenton, State of Michigan, on July 22, 2004.
USA TELCOM INTERNATIONALE
By: /S/ ROBERT C. SIMPSON
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Robert C. Simpson, Chairman and President
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement was signed by the following persons in the capacities and
on the dates stated.
SIGNATURES TITLE DATE
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/S/ ROBERT C. SIMPSON Chairman of the Board, President July 22, 2004
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Robert C. Simpson
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