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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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Single Touch Systems, Inc.
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(Exact name of registrant as specified in charter)
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| Delaware | 13-4122844 | |
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| (State or other jurisdiction of | (IRS Employer | |
| incorporation or organization) | Identification No.) |
2235 Encinitas Blvd, Suite 210
Encinitas, California, 92024 (Address of principal executive offices and Zip Code)
Single Touch Systems, Inc. 2009 Employee and Consultant Stock Plan (Full title of the plan)
| National Corporate Research, Ltd. | ||
| 615 South Dupont Hwy | ||
| Dover, Delaware 19901 | (302)734-1450 | |
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| (Name and address of agent for service) | (Telephone number of agent for service) |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the Definitions of “large accelerated filer”, “accelerated filer”, and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
[ ] Large accelerated filer [ ] Accelerated filer [ ] Non-accelerated filer [X] Smaller reporting company
| CALCULATION OF REGISTRATION FEE | ||||||||||
| Title of each class of | Amount to be | Proposed maximum | Proposed maximum | Amount of | ||||||
| securities to be registered | registered | offering price per share | aggregate offering price | registration fee | ||||||
| Common Shares | 2,000,000 | $ 0.61 | $ 1,220,000 | $ | 68.08 | |||||
Note: Pursuant to Rule 457 (c) and (h) of the Securities Act of 1933, as amended, the registration fee is calculated on the basis of the average of the closing bid and ask prices for the Common Stock as reported on the Over-The-Counter Bulletin Board at the close of trading on December 3, 2009 of $0.61.
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Single Touch Systems, Inc. - Form S-8
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PART I
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INFORMATION REQUIRED IN THE PROSPECTUS
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EXPLANATORY NOTE
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This Registration Statement is being filed in accordance with the requirements of Form S-8 in order to register 2,000,000 shares of the Company’s Common Stock issuable under the Single Touch Systems, Inc. 2009 Employee and Consultant Stock Plan (“Plan”).
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Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
*The documents containing the information specified in Part I of this Registration Statement will be sent or given to participants in the Plan as specified under Rule 428(b) (1) of the Securities Act of 1933, as amended (“Securities Act”). Such documents are not required to be and are not filed with the Securities and Exchange Commission (“Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
We will provide to each recipient a written statement advising it of the availability of documents incorporated by reference in Item 3 of Part II of this Registration Statement and of documents required to be delivered pursuant to rule 428(b) under the Securities Act without charge and upon written notice by contacting:
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Single Touch Systems, Inc.
2235 Encinitas Blvd, Suite 210 Encinitas, California, 92024 |
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Single Touch Systems, Inc. - Form S-8
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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The following document, which has been filed by the Company with the Securities and Exchange Commission, is hereby incorporated by reference:
The Company's Annual Report on Form 10-K for the fiscal year ended September 30, 2008; filed with the Commission on December 29, 2008
The Company's Quarterly Report on Form 10-Q for the period ended December 31, 2008; filed with the Commission on February 23, 2009
The Company's Quarterly Report on Form 10-Q for the period ended March 31, 2009; filed with the Commission on May 20, 2009
The Company's Quarterly Report on Form 10-Q for the period ended June 30, 2009; filed with the Commission on August 19, 2009
The Company’s Current Reports on Form 8-K filed with the Commission on June 8, 2009 and June 23, 2009
All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated in this Registration Statement by reference and to be a part hereof from the date of filing of such documents.
Any statement contained in this Registration Statement, in a supplement to this Registration Statement or in a document incorporated by reference herein, 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 subsequently filed supplement to this Registration Statement or in any document that is subsequently 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.
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Single Touch Systems, Inc. - Form S-8
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Item 4. Description of Securities.
Authorized Capital Stock |
Our Articles of Incorporation, as amended, authorize us to issue 205,000,000 shares of capital stock consisting of 200,000,000 shares of common stock, par value $0.001 per share and 5,000,000 shares of blank check preferred stock, par value $0.0001 per share.
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Description of Common Stock
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The holders of Common Stock are entitled to one vote per share on all matters submitted to a vote of the stockholders, including the election of directors. Generally, all matters to be voted on by stockholders must be approved by a majority (or, in the case of election of directors, by a plurality) of the votes entitled to be cast by all shares of Common Stock that are present in person or represented by proxy, subject to any voting rights granted to holders of any preferred stock. Except as otherwise provided by law, and subject to any voting rights granted to holders of any preferred stock, amendments to the Articles of Incorporation generally must be approved by a majority of the votes entitled to be cast by all outstanding shares of Common Stock. The Articles of Incorporation do not provide for cumulative voting in the election of directors. Subject to any preferential rights of any outstanding series of preferred stock created by the Board from time to time, the Common Stock holders will be entitled to such cash dividends as may be declared from time to time by the Board from funds available. Subject to any preferential rights of any outstanding series of preferred stock, upon liquidation, dissolution or winding up of the Company, the Common Stock holders will be entitled to receive pro rata all assets available for distribution to such holders.
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Item 5. Interests of Named Experts and Counsel.
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Randall J. Lanham, Lanham & Associates, has given an opinion on the validity of the securities being registered hereunder. Mr. Lanham has acted as General Counsel of the Company, owns shares of Common Stock and is eligible to participate in the Plan pursuant to this Form S-8 Registration Statement, but not on a contingency basis.
Jonathan P. Reuben, CPA was a former auditing accountant to the Company and now provides consulting services to the Company. Mr. Reuben is eligible to participate in the Plan pursuant to this Form S-8 Registration Statement
As of the date of this registration no other named expert or counsel holds any specified interest or significant equity in the Company.
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Single Touch Systems, Inc. - Form S-8
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Item 6. Indemnification of Directors and Officers.
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Our Certificate of Incorporation limits the liability of our directors and officers to the maximum extent permitted by Delaware law. Delaware law provides that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except liability for: (i) breach of the directors’ duty of loyalty; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) the unlawful payment of a dividend or unlawful stock purchase or redemption, and (iv) any transaction from which the director derives an improper personal benefit. Delaware law does not permit a corporation to eliminate a director’s duty of care, and this provision of our Certificate of Incorporation has no effect on the availability of equitable remedies, such as injunction or rescission, based upon a director’s breach of the duty of care.
The effect of the foregoing is to require us to indemnify our officers and directors for any claim arising against our directors and officers in their official capacities if such person acted in good faith and in a manner that 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 his or her conduct was unlawful.
INSOFAR AS INDEMNIFICATION FOR LIABILITIES MAY BE PERMITTED TO OUR DIRECTORS, OFFICERS AND CONTROLLING PERSONS PURSUANT TO THE FOREGOING PROVISIONS, OR OTHERWISE, WE HAVE BEEN ADVISED THAT IN THE OPINION OF THE SECURITIES AND EXCHANGE COMMISSION THIS TYPE OF INDEMNIFICATION IS AGAINST PUBLIC POLICY AND IS, THEREFORE, UNENFORCEABLE.
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Single Touch Systems, Inc. - Form S-8
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Not Applicable. |
| 4 | Single Touch Systems, Inc. 2009 Employee and Consultant Stock Plan, dated December 4, 2009. |
| 5 | Opinion of Counsel, Randall J. Lanham, Lanham & Associates |
| 23.1 | Consent of Certified Public Accountants – Weaver & Martin, LLC |
| 23.2 | Consent of Certified Public Accountants – Jonathan P. Reuben, CPA |
| 23.3 | Consent of Randall J. Lanham, Lanham & Associates (included in Exhibit 5) |
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Item 9. Undertakings
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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 1933 Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement(or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; and(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) do not apply if 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 SEC by the Company pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference to this Registration Statement; (2) that, for the purpose of determining any liability under the 1933 Act, 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; and (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. The undersigned Company hereby undertakes that for purposes of determining any liability under the 1933 Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 1933 Act, as amended, may be permitted to directors, officers or controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 of whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue.
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Single Touch Systems, Inc. - Form S-8
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SIGNATURES
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Pursuant to the requirements of the Securities Act of 1933, 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 Encinitas, California, on this 4th day of December 2009.
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Date: December 4, 2009
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By: \s\ Anthony Macaluso, President
Anthony Macaluso, President Principal Executive Officer and Principal Accounting Officer |
In accordance with the requirements of the Securities Act of 1933 as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
| Date: December 4, 2009 | By: | \s\ Anthony Macaluso, President | ||
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| Anthony Macaluso, President | ||||
| Principal Executive Officer and Principal Accounting Officer | ||||
| Date: December 4, 2009 | By: | \s\ Laurence Dunn, Director | ||
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| Laurence Dunn, Director | ||||
| Date: December 4, 2009 | By: | \s\ Richard Siber, Director | ||
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| Richard Siber, Director | ||||
| Date: December 4, 2009 | By: | \s\ James Cassina | ||
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| James Cassina, Director | ||||
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Single Touch Systems, Inc.
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2009 Employee and Consultant Stock Plan
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1. Purpose . The purpose of this 2009 Employee and Consultant Stock Plan (“Plan”) is to provide compensation in the form of common stock (“Common Stock”) of Single Touch Systems, Inc.(“Corporation”) to employees and “eligible consultants” (as defined in Section 3 hereof) who have previously rendered services to the Corporation or who will render services to the Corporation in the future.
2. Administration . (a) This Plan shall be administered by the Board of Directors of the Corporation who may from time to time (i) issue orders or adopt resolutions not inconsistent with the provisions of this Plan and (ii) interpret the provisions and supervise the administration of the Plan. The President of the Corporation shall make initial determinations as to which employees and “eligible consultants” (including professionals and advisors) will be considered to receive shares of Common Stock under the Plan and on what terms and conditions. The President of the Corporation will provide a list of such individuals to the Board of Directors or designated committee or Director/s designated by the Board for such purpose. All final determinations under the Plan shall be made by the affirmative vote of a majority of the members of the Board of Directors at a meeting called for such purpose, or reduced to writing and signed by a majority of the members of the Board of Directors or by approval of a committee or Director/s designated by the Board for such purpose. Subject to the Corporation’s Bylaws, all decisions by the Board of Directors in selecting employees and “eligible consultants,” establishing the number of shares and construing the provisions of this Plan shall be final, conclusive and binding on all persons, including the Corporation, shareholders, employees and “eligible consultants.”
3. Eligible Consultants . The Corporation may engage “advisors” and/or “consultants,” who are residents of the United States of America and who may participate in this Plan in the future, as long as such “advisors” and/or “consultants” fit the definition of “employee” included the General Instructions to Securities and Exchange Commission (“SEC”) Form S-8, which define the term “employee” to include any employee, director, general partner, officer, consultant or advisor. Such General Instructions impose three essential limitations on “consultants” and “advisors” eligible for participation in a plan covered by SEC Form S-8. Therefore, in order for a “consultant” or “advisor” to the Corporation to be an “eligible consultant” under this Plan and to be eligible to receive shares of Common Stock under this Plan and pursuant to a Form S-8 filed by the Corporation with the SEC, such “consultant” and/or “advisor” (i) must be a natural person; (ii) must provide bona fide services to the Corporation; and (iii) the services rendered by such “consultant” or “advisor” may not be in connection with the offer or sale of securities in a capital-raising transaction and may not directly or indirectly promote or maintain a market for the Corporation’s securities.
| 4. | Shares Subject to the Plan . The total number of shares of Common Stock subject to this Plan is 2,000,000. |
| 5. | Investment Intent . Unless and until the sale and issuance of Common Stock subject to the Plan are registered |
under the Securities Act of 1933, as amended (“Securities Act”). or shall be exempt from registration pursuant to the rules promulgated thereunder, each grant of Common Stock under the Plan shall provide that the acquisitions of Common Stock hereunder shall be for investment purposes and not with a view to, or for resale in connection with, any distribution thereof. Further, unless the issuance and sale of the Common Stock has been registered under the Securities Act, each grant of Common Stock shall provide that no shares shall be sold unless and until (i) all then applicable requirements of state and federal laws and regulatory agencies shall have been fully complied with to the satisfaction of the Corporation and its counsel; and (ii) if requested to do so by the Corporation, the person who is to receive a grant of Common Stock pursuant to the Plan shall have executed and delivered to the Corporation a letter of investment intent and/or such other form related to applicable exemptions from registration, all in such form and substance as the Corporation may required.
6. Stock Splits, Stock Dividends, Combinations or Reclassifications . In the event of any change in the outstanding stock of the Corporation by reason of a stock split, stock dividend, combination or reclassification of shares, recapitalization, merger or similar event (“Adjusting Event”), the Board of Directors may adjust proportionally (a) the number of shares of Common Stock reserved under the Plan, which have not been granted as of the effective date of such Adjusting Event.
7. Withholding . The Corporation shall have the right to deduct from any grant of Common Stock an appropriate number of shares for payment of taxes by law or to take such other action as may be necessary in the opinion of the Corporation to satisfy all obligations for withholding of such taxes. If Common Stock is used to satisfy tax withholding, such stock shall be valued in good faith by the Board of Directors, who may use reported trading data from the Over-the-Counter Bulletin Board for the five trading days preceding such withholding.
8. Governing Law . The Plan and all determinations made and action taken pursuant hereto, to the extent not otherwise governed by the securities laws of the United States, shall be governed by the law of the State of Delaware and construed accordingly.
9. Termination of the Plan . This Plan shall terminate upon the issuance of all shares available under the Plan or when it is otherwise terminated by the Board of Directors.
10. Effective Date of the Plan . This Plan shall become effective upon its adoption by the Board of Directors.
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CERTIFICATION OF ADOPTION
(By the Board of Directors) |
The undersigned, being the members of the Board of Directors of Single Touch Systems, Inc. hereby certify that the foregoing Plan was adopted by majority vote of the Board of Directors on December 4, 2009.
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/s/ Anthony Macaluso
Anthony Macaluso, Director /s/ Richard Siber Richard Siber, Director /s/ James Cassina James Cassina, Director /s/Larry Dunn Larry Dunn, Director |
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OPINION AND CONSENT OF LEGAL COUNSEL
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R
ANDALL
J.
L
ANHAM
Lanham and Associates 28562 Oso Parkway, Unit D Rancho Santa Margarita, California 92688 |
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December 4, 2009
Board of Directors S INGLE T OUCH S YSTEMS , I NC . 2235 Encinitas Boulevard, Suite 210 Encinitas, California 92024 Gentlemen: |
We have acted as counsel to Single Touch Systems, Inc. (the "Company") in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement") covering registration under the Securities Act of 1933, as amended, of the 2,000,000 shares of the Company's common stock, $.001 par value per share (the "Shares"), pursuant to the 2009 Employee and Consultant Stock Plan, (the “Plan”). As such, we have examined the Registration Statement and such other documents of the Company, as we deemed appropriate under the circumstances.
Based upon the foregoing, and assuming that the Shares will be issued as set forth in the Plans and Registration Statement, at a time when effective, and that there will be full compliance with all applicable securities laws involved under the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended and the rules and regulations promulgated pursuant to said Acts, and in those states in which the Shares may be sold, we are of the opinion that, upon issuance of the Shares according to the Registration Statement and receipt of the consideration to be paid for the Shares, the Shares will be validly issued, fully paid and nonassessable shares of Common Stock of the Company. This opinion does not cover any matters related to any re-offer or re-sale of the Shares by the Plan Beneficiary, once issued pursuant to the Plans as described in the Registration Statement.
This opinion is not to be used, circulated, quoted or otherwise referred to for any other purpose without our prior written consent. This opinion is based on our knowledge of the law and facts as of the date hereof. We assume no duty to communicate with the Company in respect to any matter which comes to our attention hereafter.
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Very truly yours,
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\S\ Randall J. Lanham
Randall J. Lanham, Lanham and Associates |
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Consent:
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We consent to the use of our opinion dated December 4, 2009 as an exhibit to the Registration Statement of Single Touch Systems, Inc. and to the reference to our firm in the Registration Statement.
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\S\ Randall J. Lanham
Randall J. Lanham, Lanham and Associates |
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated December 29, 2008 appearing in the Annual Report on Form 10-K of Single Touch Systems, Inc. for the year ended September 30, 2008 and to the reference to our Firm in this Registration Statement.
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/s/Weaver & Martin LLC
Weaver & Martin LLC Kansas City, Missouri December 4, 2009 |
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated December 19, 2008 appearing in the Annual Report on Form 10-K of Single Touch Systems, Inc. for the year ended September 30, 2007 and to the reference to our Firm in this Registration Statement.
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/s/ Jonathon P. Reuben, C.P.A.
Jonathon P. Reuben, C.P.A. An Accountancy Corporation Torrance, California December 4, 2009 |