U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2 TO FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
ZANNWELL INC.
(Exact name of registrant as specified in its charter)
Nevada 8900 88-0408213
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
1802 N. Carson Street, Suite 212 Carson City, Nevada 89701; (775) 887-0670
(Address and telephone number of Registrant's principal executive offices and
principal place of business)
AMENDED AND RESTATED ZANNWELL INC. 2004 EMPLOYEE STOCK INCENTIVE PLAN
AMENDED AND RESTATED ZANNWELL INC. 2004 NON-EMPLOYEE DIRECTORS
AND CONSULTANTS RETAINER STOCK PLAN
(Full title of the Plans)
Steve Bonenberger, 1802 N. Carson Street, Suite 212 Carson City, Nevada 89701
(Name and address of agent for service)
(775) 887-0670
(Telephone number, including area code, of agent for service)
EXPLANATORY NOTE
AMENDMENT TO
AMENDED AND RESTATED ZANNWELL INC. 2004 EMPLOYEE STOCK INCENTIVE PLAN
AMENDED AND RESTATED ZANNWELL INC. 2004 NON-EMPLOYEE DIRECTORS AND
CONSULTANTS RETAINER STOCK PLAN
On June 15, 2004, our predecessor, USA Telcom Internationale, filed with
the Securities and Exchange Commission (SEC) a Registration Statement No.
333-116498 on Form S-8, pertaining to the USA Telcom Internationale 2004
Employee Stock Incentive Plan and USA Telcom Internationale 2004 Non-Employee
Directors and Consultants Retainer Stock Plan. On July 23, 2004, we filed with
the SEC a Post-Effective Amendment No. 1 to our Form S-8 No. 333-116498. This
Post-Effective Amendment No. 2 to our Form S-8 No. 333-116498 is being filed to:
o Amend the definition of "Adjustments Upon Change in Capitalization" in
Paragraph 4.1.1 of the Amended and Restated Zannwell Inc. 2004 Employee
Stock Incentive Plan;
o Amend the definition of "Shares Subject to this Plan" in Paragraph 1.4 of
the Amended and Restated Zannwell Inc. 2004 Employee Stock Incentive Plan;
o Amend the definition of "Adjustments; Change of Control" in Paragraph 12
of the Amended and Restated Zannwell Inc. 2004 Non-Employee Directors and
Consultants Retainer Stock Plan; and
o Amend the definition of "Shares Available" in Paragraph 12 of the Amended
and Restated Zannwell Inc. 2004 Non-Employee Directors and Consultants
Retainer Stock Plan.
Except as described above, and the current date of December 6, 2004, no
other changes have been made to our Form S-8 Registration Statement No.
333-116498. 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 No. 2 is not an admission
that our Registration Statement No. 333-116498 on Form S-8, or our
Post-Effective Amendment No. 1 to our Registration Statement No. 333-116498,
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 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 documents containing the information specified in Part I, Items 1 and
2, will be delivered to each of the participants in accordance with Form S-8 and
Rule 428 promulgated under the Securities Act of 1933. The participants shall be
provided a written statement notifying them that upon written or oral request
they will be provided, without charge, (i) the documents incorporated by
reference in Item 3 of Part II of the 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 shall 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 hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB for the
fiscal year ended December 31, 2003, filed on March 19, 2004.
(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 Form 10-KSB referred to in (a) above.
(c) A description of the Registrant's securities contained in the
Registration Statement on Form 10SB12G filed by the Registrant to register the
common stock under the Exchange Act, including all amendments filed for the
purpose of updating such common stock description.
All documents subsequently filed by the Registrant 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 securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be part
thereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Other than as set forth below, no named expert or counsel was hired on a
contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our bylaws do not contain a provision entitling any director or executive
officer to indemnification against its liability under the Securities Act. The
Nevada Revised Statutes allow a company 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, which such 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 were not parties to the action, suit, or proceeding confirmed
by opinion of independent legal counsel; or by opinion of independent legal
counsel in the event a quorum of directors who were not a party to such action,
suit, or proceeding does not exist.
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Provided the terms and conditions of these provisions under Nevada 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. Insofar as indemnification for liabilities arising
under the Securities Act 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, such indemnification is against public
policy and is, therefore, unenforceable.
The Nevada Revised Statutes, stated herein, provide further for permissive
indemnification of officers and directors.
"A. NRS 78.7502. Discretionary and mandatory indemnification of officers,
directors, employees and agents: General provisions.
"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 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 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, and 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 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.
"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.
"B. NRS 78.751. Authorization required for discretionary indemnification;
advancement of expenses; limitation on indemnification and advancement of
expenses.
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"1. Any discretionary indemnification under NRS 78.7502 unless
ordered by a court or advanced pursuant to subsection 2, may be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
"(a) By the stockholders;
"(b) By the board of directors 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 consisting of directors who
were not parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or
"(d) If a quorum consisting of directors who were not parties
to the action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
"2. The articles of incorporation, the bylaws or an agreement made
by the corporation may provide that the expenses of officers and directors
incurred in defending a civil or criminal action, suit or proceeding must be
paid by the corporation as they are incurred and in advance of the final
disposition of the action, suit or proceeding, upon receipt of an undertaking by
or on behalf of the director or officer to repay the amount if it is ultimately
determined by a court of competent jurisdiction that he is not entitled to be
indemnified by the corporation. The provisions of this subsection do not affect
any rights to advancement of expenses to which corporate personnel other than
directors or officers may be entitled under any contract or otherwise by law.
"3. The indemnification and advancement of expenses authorized in
NRS 78.7502 or ordered by a court pursuant to this section:
"(a) Does not exclude any other rights to which a person
seeking indemnification or advancement of expenses may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, for either an action in his official
capacity or an action in another capacity while holding his office, except that
indemnification, unless ordered by a court pursuant to or for the advancement of
expenses made pursuant to subsection 2, may not be made to or on behalf of any
director or officer if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action.
"(b) Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
"C. NRS 78.752. Insurance and other financial arrangements against
liability of directors, officers, employees and agents.
"1. A 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 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 for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
"2. The other financial arrangements made by the corporation
pursuant to subsection 1 may include the following:
"(a) The creation of a trust fund.
"(b) The establishment of a program of self-insurance.
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"(c) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the corporation.
"(d) The establishment of a letter of credit, guaranty or
surety. No financial arrangement made pursuant to this subsection 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 the advancement of
expenses or indemnification ordered by a court.
"3. Any insurance or other financial arrangement made on behalf of a
person pursuant to this section may be provided by the 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 the corporation.
"4. 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:
"1. Is not void or voidable; and
"2. Does not subject any director approving it to personal
liability for his action, even if a director approving the insurance or other
financial arrangement is a beneficiary of the insurance or other financial
arrangement.
"5. A corporation or its subsidiary which provides self-insurance
for itself or for another affiliated corporation pursuant to this section is not
subject to the provisions of Title 57 of the Nevada Revised Statutes."
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-B, and an index thereto,
are attached.
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.
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(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.
(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 are 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.
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 Post-Effective
Amendment No. 2 to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Carson City, Nevada on
December 6, 2004.
ZANNWELL INC.
By /s/ Steve Bonenberger
------------------------------------
Steve Bonenberger, President
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Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 2 to registration statement has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
/s/ Steven Bonenberger President, Chief Executive Officer December 6, 2004
------------------------- and Director
/s/Brent Fouch Secretary, Chief Financial Officer December 6, 2004
------------------------- and Director
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EXHIBIT INDEX
EXHIBIT NO. 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 Opinion Re: Legality.
23.1 Consent of Accountant.
23.2 Consent of Counsel.
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