Attached files
| file | filename |
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| EX-5.1 - PARETEUM Corp | v205882_ex5-1.htm |
As
filed with the Securities and Exchange Commission on December 17,
2010
Registration
No. 333-170769
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Amendment
No. 1 to
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Elephant
Talk Communications, Inc.
(Exact
name of registrant as specified in its charter)
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California
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4813
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95-4557538
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer Identification
No.)
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19103
Centre Rose Boulevard
Lutz,
Florida 33558
+
1 (813)-926-8920
(Address,
including zip code, and telephone number, including area code, of registrant’s
principal executive offices)
Steven
van der Velden
c/o
Ellenoff Grossman & Schole LLP
150
East 42nd Street, 11th
Floor
New
York, New York 10010
(Name,
address including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
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Barry
I. Grossman, Esq.
Sarah
Williams, Esq.
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Ellenoff
Grossman & Schole LLP
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150
East 42nd Street, 11th Floor
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New
York, NY 10017
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Tel:
(212)-370-1300
Facsimile:
(212)-370-7889
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Registrant’s
telephone number: + 1
(813)-926-8920
APPROXIMATE
DATE OF PROPOSED SALE TO PUBLIC: From time to time after this
Registration
Statement becomes effective.
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box: x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the ?earlier effective
registration statement for the same offering.
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective ?registration statement for the same
offering.
If this
Form is a post-effective amendment filed pursuant to Rule 462(d) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective ?registration statement for the same
offering.
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. (Check one):
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Large
accelerated filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller
reporting company
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x
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Title of Each Class of Securities
to be Registered
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Amount to be
Registered (1)
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Proposed
Maximum
Offering
Price per
Unit (1)
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Proposed
Maximum
Aggregate
Offering Price
(1)
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Amount of
Registration
Fee
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|||||||||||||
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common
stock, no par value per share, offered by certain selling stockholders
(2)(3)
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21,322,997 | $ | 3.50 | $ | 74,630,489.50 | $ | 5,321.16 | ||||||||||
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common
stock, no par value per share, underlying warrants held by certain selling
stockholders (3)
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13,236,475 | $ | 1.00 | $ | 13,236,475.00 | $ | 943.76 | ||||||||||
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common
stock, no par value per share, underlying warrants held by certain selling
stockholders (3)
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3,117,650 | $ | 1.25 | $ | 3,769,375.00 | $ | 277.86 | ||||||||||
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common
stock, no par value per share, underlying warrants held by certain selling
stockholders (3)
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3,451,170 | $ | 1.45 | $ | 5,004,196.50 | $ | 356.80 | ||||||||||
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common
stock, no par value per share, underlying warrants held by certain selling
stockholders (3)
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22,004,325 | $ | 1.50 | $ | 33,006,487.50 | $ | 2,353.36 | ||||||||||
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common
stock, no par value per share, underlying warrants held by certain selling
stockholders (3)
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609,840 | $ | 1.61 | $ | 981,842.40 | $ | 70.01 | ||||||||||
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common
stock, no par value per share, underlying selling agent warrants held by
certain selling stockholders (3)
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2,012,250 | $ | 1.73 | $ | 3,481,192.50 | $ | 248.21 | ||||||||||
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common
stock, no par value per share, underlying warrants held by certain selling
stockholders (3)
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3,117,650 | $ | 2.00 | $ | 6,235,300.00 | $ | 444.58 | ||||||||||
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TOTAL
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68,872,357 | $ | 140,473,045.90 | $ | 10,015.73 | (4) | |||||||||||
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(1)
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The
registration fee for securities to be offered by the Registrant is based
on an estimate of the Proposed Maximum Aggregate Offering Price of the
securities, and such estimate is solely for the purpose of calculating the
registration fee pursuant to Rule
457(o).
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(2)
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Based
on the closing price of the company’s common stock on November 19,
2010.
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(3)
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Pursuant
to Rule 416 of the Securities Act of 1933, also registered hereby are such
additional and indeterminable number of shares as may be issuable due to
adjustments for changes resulting from stock dividends, stock splits and
similar changes as well as anti-dilution provisions applicable to the
notes and warrants.
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(4)
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Previously
paid.
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The registrant hereby amends this
registration statement on such date or dates as may be necessary to delay its
effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until
the registration statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to Section 8(a) may
determine.
EXPLANATORY
NOTE
The
sole purpose of this Amendment No. 1 to the Registration Statement on Form S-1
Elephant Talk Communications, Inc. (Commission File No. 333-170769) is to file a
signed version of the 5.1 opinion and
to revise certain fees described in Item 13 of Part II.
No other changes have been made to the Registration Statement on Form
S-1.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution
The
following table sets forth an itemization of all estimated expenses, all of
which we will pay, in connection with the issuance and distribution of the
securities being registered:
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Nature of Expense
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Amount
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SEC
registration fee
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$
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10,015.73
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Legal
fees and expenses
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$
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57,500.00
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Accounting
fees and expenses
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$
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20,000.00
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TOTAL
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$
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87,515.73
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Item
14. Indemnification of Directors and Officers
Charter
Provisions and Other Agreement of the Company
Our
articles of incorporation and bylaws include provisions to (i) eliminate
the personal liability of our directors for monetary damages resulting from
breaches of their fiduciary duty, to the extent permitted by California law and
(ii) permit us to indemnify our directors and officers, employees and other
agents to the fullest extent permitted by the California Corporations Code.
Pursuant to Section 317 of the California Corporations Code, a corporation
generally has the power to indemnify its present and former directors, officers,
employees and agents against any expenses incurred by them in connection with
any suit to which they are, or are threatened to be made, a party by reason of
their serving in such positions so long as they acted in good faith and in a
manner they reasonably believed to be in, or not opposed to, the best interests
of a corporation and, with respect to any criminal action, they had no
reasonable cause to believe their conduct was unlawful. We believe that these
provisions are necessary to attract and retain qualified persons as directors
and officers. These provisions do not eliminate liability for breach of the
directors’ duty of loyalty to us or our shareholders, for acts or omissions not
in good faith or involving intentional misconduct or knowing violations of law,
for any transaction from which the director derived an improper personal benefit
or for any willful or negligent payment of any unlawful dividend.
Item
15. Recent Sales of Unregistered Securities
On
January 12, 2010 we entered into an agreement with Alliance Advisors, LLC as
consideration for investor relations and consulting services to be provided
through June 30, 2010. We agreed to pay Alliance Advisors, LLC 12,500 restricted
shares of our common stock. These shares have already been issued in 2010. The
contract includes the issue of another 12,500 restricted shares of our common
stock to be issued end of June 2010.
In
connection with the QAT II loans, we issued to QAT II an aggregate of 2,513,195
warrants to purchase up to 2,513,195 shares of common stock.
On March
17, 2010 we issued 10,235,739 shares as purchase price consideration following
the completion of the acquisition of Validsoft Ltd.
In May
2010 we sold 2,885,000 of units at a purchase price of $1.00 per unit, with each
unit consisting of one share of our restricted common stock and two warrants to
accredited, United States and foreign investors (including affiliates of the
Company) in transactions exempt from registration under the Securities Act
pursuant to Section 4(2), Regulation D and Regulation S (the “Sales”). In
connection with the Sales, the purchasers received (i) warrants to purchase up
to 2,885,000 of shares of our common stock, at an exercise price of $1.25 per
share and (ii) warrants to purchase up to 2,885,000 of shares of our common
stock, at an exercise price of $2.00 per share. None of the warrants contain
cashless exercise provisions.
II-1
Each
warrant contains standard anti-dilution protection and may be cancelled upon the
occurrence of the following: (i) with respect to the $1.25 warrant, in the event
that the average of the last closing sale price of the common stock on the OTC
Bulletin Board, or a national securities exchange, trading market or
inter-dealer electronic quotation system, exceeds $3.00 for twenty consecutive
trading days and the holder fails to exercise within fifteen days of receipt of
notice this target was met, the warrants will expire worthless and (ii) with
respect to the $2.00 warrant, in the event that the average of the last closing
sale price of the common stock on the OTC Bulletin Board, or a national
securities exchange, trading market or inter-dealer electronic quotation system,
exceeds $4.00 for twenty consecutive trading days and the holder fails to
exercise within fifteen days of receipt of notice this target was met, the
warrants will expire worthless.
The
proceeds of the 2010 bridge offering securities were used for general working
capital purposes.
On June
28, 2010, we consummated the first closing of the 2010 Private Placement
Offering. In connection with the first closing, we sold units having an
aggregate value of $6,459,800 to accredited investors. At a price of $1.20
per unit, we delivered shares of common stock in the amount of 5,383,175 and
warrants to purchase an aggregate of 5,383,175 shares of common stock at a
purchase price of $1.20 per share, rounding up to account for any fractional
shares.
On August
4, 2010, we sold an aggregate of $1,482,700 principal amount of
units and delivered warrants to purchase an aggregate of 1,235,587 shares of
common stock at a purchase price of $1.50 per share.
On August
31, 2010, we sold an aggregate of $445,050 principal amount of
units at $1.20 per Unit, delivering 370,876 shares of common stock and warrants
to purchase an aggregate of 370,876 shares of common stock at an exercise price
of $1.50 per share.
On
October 8, 2010, we old an aggregate of $13,738,021 in principal amount of
units, including $5,612,450 principal amount in
units sold by Dawson James Securities, Inc. (“Dawson James”) and $8,125,571 from
the automatic conversions of the promissory notes and loans held by QAT
II. As a result, the Company delivered 11,448,359 shares of common
stock and warrants to purchase an aggregate of 11,448,359 shares of common
stock.
The
warrants issued as part of the units included in the 2010 Private Placement
Offering entitle the holder to purchase shares of our common stock for a period
of five years from the date of issuance and contain certain anti-dilution
rights. In the event (i) the trading price of the common stock exceeds
$2.25 for twenty (20) consecutive trading days and (ii) there is an effective
registration statement with a current prospectus on file with the Securities and
Exchange Commission, we have the option to redeem the warrants.
The
Company is obligated to register the common stock underlying the units and
warrants on a
registration statement to be filed after the final closing of the 2010 Private
Placement Offering. In addition, the investors in the 2010 Private
Placement Offering are entitled to unlimited piggy-back registration
rights.
In
connection with the 2010 private placement offering, we issued 2,100,005
warrants on the same terms as the warrants included in the units to Dawson
James.
The
proceeds of the 2010 private placement securities were used for working capital
pruposes.
On June
10, 2010, we issued 5,026,390 warrants to QAT II in consideration for their
executing the amendment to the QAT loan agreements.
In
addition, during the three months ending June 30, 2010, we issued an aggregate
of 1,671,767 shares to various parties for (i) services provided and (ii) with
respect to contingent condition due pursuant to a stock purchase agreement. We
received no proceeds from the issuance of these securities.
On
January 31, 2008 we entered into an agreement with Insomnia BV. This agreement
included the issuance of warrants to purchase shares of our common stock based
on the revenue-margin contributed by the acquisition of customers during 2008
and 2009. The final calculation has been made which resulted in the issuance of
warrants to purchase 3,256 shares of our common stock at an exercise price of
$2.25
In
December 2009 the Compensation Committee and board of directors approved the
issuance of certain employee stock option to purchase up to 2,276,000 of our
common shares with an average exercise price of $1.35.
II-2
Pursuant
to a Consulting Agreement dated June 20, 2008, as amended July 9, 2008, we
issued 325,000 shares of our common stock pursuant to our 2008 Long-Term
Incentive Plan to a consultant in exchange for services to be rendered. The
shares of common stock were issued pursuant to the exemption from registration
provided by Section 4(2) of the Securities Act of 1933.
In August
of 2008, we consummated a final closing (the “Closing”) of our private placement
offering (the “Offering”), an offering that started in May 2008, of Units
comprised of shares of common stock (the “Shares”) and warrants to purchase
shares of common stock (the “Warrants”, together with the Shares, the
“Securities”) to accredited European investors (“Investors”). The Securities
were offered and sold pursuant to an exemption from registration under Section
4(2) of the Securities Act of 1933, as amended (the “Securities
Act”).
In the
second quarter of 2008 we sold an aggregate of 3,148,929 Shares at a exercise
price of $1.05 per Share and delivered Warrants to purchase an aggregate of
3,148,926 shares of our common stock at a exercise price of $1.26 per share and
Warrants to purchase an aggregate of 1,574,462 shares of our common stock at a
exercise price of $1.47 per share.
In the
third quarter of this year we sold an aggregate of 3,898,177 Shares at a
exercise price of $1.05 per Share and delivered Warrants to purchase an
aggregate of 3,898,653 Shares of our common stock at a exercise price of $ 1.26
per share and Warrants to purchase an aggregate of 1,949,327 shares of our
common stock at a exercise price of $1.47 per share.
We sold
in total 7,047,106 Shares at an exercise price of $1.05 and delivered
Warrants to purchase an aggregate of 7,047,579 shares of our common stock at
an exercise price of $1.26 per share and Warrants to purchase an aggregate
of 3,523,789 shares of our common stock at an exercise price of $1.47 per
share.
In
2008 we realized gross proceeds of $7,400,127 and net proceeds of
$6,372,132 after the payment of placement fees which totaled
$1,027,995.
On
September 30, 2008, we issued 30,000 shares of our common stock to Redchip
Companies, Inc. in consideration for consulting services related to investor
relations.
On June
9, 2008, we and Rising Water Capital AG (“RWC”) entered into a settlement
agreement, effective May 13, 2008 (the “Settlement Agreement”), whereby RWC
agreed to convert the Note held by it in the amount of $3,500,000 and
accumulated interest of $889,881 into our common stock. As a result, total
number of shares post reverse stock split issued as a result of the conversion
was 5,017,007, based on a post reverse stock split conversion price of
$0.875.
On May
26, 2006, we executed a second Convertible Promissory Note (the “2nd Note”)
in the principal sum of $3,000,000 with RWC. On June 9, 2008, we and RWC
entered into the Settlement Agreement whereby RWC agreed to convert the 2nd note
principal amount of $3,000,000 and interest of $549,289 into our common stock.
RWC also agreed to fund the remaining balance under the $3,000,000 note. In
order to induce RWC to convert the promissory note, we agreed to reduce the
conversion price of the $3,000,000 note to the price at which we offer our
common stock in a subsequent financing with a minimum of $1,000,000 in gross
proceeds. The conversion price was adjusted to reflect the reverse stock split.
As a result, the total number of shares (pre Reverse Split 1:25) amounted to
84,506,891. The number of post Reverse Stock Split shares issued as a
result of the conversion was 3,380,276 (post reverse stock split price of
$1.05).
Pursuant
to the terms of the Settlement Agreement, upon conversion of the 2nd Note,
we agreed to make an incentive payment to RWC, commensurate with any fees paid
in connection with a financing, pro rata, based upon the aggregate amount raised
in such financing, whether equity or debt, of at least $1.0 million (the
“Incentive Payment”).
On
February 3, 2009, 23,982 shares of common stock were issued to RWC as part of
the Incentive Payment. As a result of our private placement of securities
in excess of $1.0 million, RWC is additionally entitled, as an Incentive
Payment, approximately $451,915 in cash and was issued warrants to purchase
338,029 shares of our common stock at $1.05 per share, warrants to purchase
338,029 shares of our common stock at $1.26 per share and warrants to purchase
169,015 shares of our common stock at $1.47 per share. In lieu of the cash
payment to RWC was entitled, on January 2, 2009, RWC accepted 742,000 shares of
our common stock, based on a conversion price of $0.60 per
share.
II-3
In the
fourth quarter of 2008, pursuant to four restricted stock agreements, we issued
an aggregate of 2,420,833 to our non-executive directors in consideration for
services rendered in connection with their positions on our board of
directors.
The
following private placements of the Company’s securities were made in reliance
upon the exemption from registration under Section 4(2) of the Securities Act of
1933, as amended, Rule 506 of Regulation D promulgated under the Securities Act
or Regulation S.
Item
16. Exhibits
Number
Description
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3.1
Amended and Restated Articles of Incorporation (1)
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3.2
Amended and Restated By-Laws (2)
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3.3
Amended and Restated Articles of Incorporation, filed with the State of
California on June 10, 2008. (3)
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5.1
Opinion of Ellenoff Grossman & Schole LLP
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10.1
Stock Purchase Agreement dated June 30, 2005, by and among the Company and
Rising Water Capital, A.G. (4)
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10.2
Convertible Promissory Note dated December 15, 2005, by the Company, in
favor of Rising Water Capital, A.G. (5)
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10.3
Equity Transfer Agreement, dated January 4, 2006, by and among Zhongrun
Chuangtou Technology Co. Ltd. and Guangdong Guangxiang Network Information
Co., Ltd (6)
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10.4
Exclusive Technical Consulting and Services Agreement, dated January 2,
2006, by and among Jinfuyi Technology (Beijing) Co., Ltd. and Beijing
Chinawind Communication Information Technology Co., Ltd.
(6)
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|
10.5
Convertible Promissory Note dated May 26, 2006, by the Company, in favor
of Rising Water Capital, A.G. (7)
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10.6
Agreement of Purchase and Sale, dated November 16, 2006, by and among the
Company, Elephant Talk Europe Holding B.V. and Beltrust
A.G.
(8)
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10.7
Form of Common Stock Purchase Agreement, dated August 31, 2007, by and
among the Company and certain investors. (9)
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10.8
Settlement Agreement, entered by and between the Company and Rising Water
Capital AG. (10)
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10.9
Loan Agreement by and between the Company and QAT II Investments dated
January 27, 2009(11)
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10.10
Loan Agreement by and between the Company and QAT II Investments dated
February 15, 2009(12)
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10.11
Loan Agreement by and between the Company and QAT II Investments dated
February 23, 2009(12)
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10.12
Loan Agreement by and between the Company and QAT II Investments dated
March 31, 2009(12)
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10.13
Security Agreement, entered into by and between the Company and QAT II
Investments (12)
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10.14
Loan Agreement by and between the Company and QAT II Investments dated May
27, 2009(13)
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10.15
Contract for the Supply of Operation and Technical Services through a
Comprehensive Technological Platform between Vizzavi Espana S.L. and the
Company(14)
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10.16
Collaboration Agreement by and between Validsoft Limited and the
Company(15)
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10.17
Loan Agreement by and between the Company and QAT II Investments dated
July 1, 2009(16)
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10.18
Amendments to Loan Agreements dated January 27, 2009, February 15, 2009,
March 4, 2009, March 31, 2009, May 4, 2009, and May 27, 2009 by and
between QAT II Investments and the Company(16)
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10.19
Side Agreement by and between Validsoft Limited and the
Company(17)
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10.20
Extension Agreement by and between Validsoft Limited and the
Company(17)
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10.21
Amendment to Loan Agreements dated January 27, 2009, February 15, 2009,
March 4, 2009, March 31, 2009, May 4, 2009, May 27, 2009, July 1, 2009 and
July 8, 2009 by and between QAT II Investments and the
Company(18)
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10.22
Letter Agreement by and between Validsoft Limited and the
Company(19)
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10.23
Heads of Terms Agreement by and between Validsoft Limited and the
Company(20)
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10.24
Loan Agreement by and between the Company and QAT II Investments dated
February 3, 2010(21)
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10.25
Loan Agreement by and between the Company and QAT II Investments dated
February 24, 2009(22)
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10.26
Sale and Purchase Agreement, dated March 17, 2010, by and among the
Company. And the shareholders of Validsoft Limited other than Enterprise
Ireland (23)
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10.27
Sale and Purchase Agreement, dated March 17, 2010, by and the Company and
Enterprise Ireland (23)
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10.28
Loan agreement dated March 22, 2010 by and between the Company and QAT II
Investments, SA (25)
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10.29
Loan agreement dated March 30, 2010 by and between the Company and QAT II
Investments, SA (25)
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14.1
Code of Ethics (1)
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21.1
Subsidiaries of the Registrant (24)
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II-4
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23.1
Consent public accounting firm BDO Seidman, LLP**
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23.2
Consent of Ellenoff Grossman & Schole LLP (included in Exhibit
5.1)
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**
Previously filed
(1) Filed
as part of our Definitive Proxy Statement on Schedule 14A on December 28,
2007.
(2) Filed
as an Exhibit to our Current Report on Form 8-K on January 22,
2008.
(3) Filed
as an Exhibit to our Current Report on Form 8-K on June 12, 2008.
(4) Filed
as an Exhibit to our Current Report on Form 8-K on July 7, 2005.
(5) Filed
as an Exhibit to our Current Report on Form 8-K on December 16,
2005.
(6) Filed
as an Exhibit to our Current Report on Form 8-K on January 13,
2006.
(7) Filed
as an Exhibit to our Current Report on Form 8-K on June 5, 2006.
(8) Filed
as an Exhibit to our Current Report on Form 8-K on December 1,
2006.
(9) Filed
as an Exhibit to our Current Report on Form 8-K on November 19,
2007.
(10)
Filed as an Exhibit to our Current Report on Form 8-K on June 12,
2008.
(11)
Filed as an Exhibit to our Current Report on Form 8-K on February 2,
2009.
(12)
Filed as an Exhibit to our Current Report on Form 8-K on April 9,
2009.
(13)
Filed as an Exhibit to our Current Report on Form 8-K on June 1,
2009.
(14)
Filed as an Exhibit to our Current Report on Form 8-K on June 4, 2009 and
amended by a Current Report on Form 8-K filed September 17, 2009.
(15)
Filed as an Exhibit to our Current Report on Form 8-K on June 24,
2009.
(16)
Filed as an Exhibit to our Current Report on Form 8-K on July 2,
2009.
(17)
Filed as an Exhibit to our Current Report on Form 8-K on July 8,
2009.
(18)
Filed as an Exhibit to our Current Report on Form 8-K on July 21,
2009.
(19)
Filed as an Exhibit to our Current Report on Form 8-K on August 6,
2009.
(20)
Filed as an Exhibit to our Current Report on Form 8-K on November 6,
2009.
(21)
Filed as an Exhibit to our Current Report on Form 8-K on February 18,
2010.
(22)
Filed as an Exhibit to our Current Report on Form 8-K on February 26,
2010.
(23)
Filed as an Exhibit to our Current Report on Form 8-K on March 23,
2010.
(24)
Filed as an Exhibit to our Annual Report on Form 10-K for the fiscal year ended
December 31, 2009 on March 31, 2010.
(25)
Filed as an Exhibit to our Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2010 on May 17, 2010.
Item
17. 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:
(i) To
include any prospectus required by section 10(a)(3) of the Securities
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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with
the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective
registration statement; and
(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;
II-5
(2) That,
for the purpose of determining any liability under the Securities 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.
(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.
(4) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(i) If
the registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
II-6
Insofar
as indemnification for liabilities arising under the Securities Act 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 SEC such indemnification is against public
policy as expressed in the Securities 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
Securities Act and will be governed by the final adjudication of such
issue.
II-7
Pursuant
to the requirements of the Securities Act of 1933, the registrant has duly
caused this registration statement to be signed on its behalf by the
undersigned, in the City of New York, State of New York on the 17th day of
December, 2010.
|
Elephant
Talk Communications, Inc.
|
|
|
By:
|
/s/ Steven
van der Velden
|
|
Steven
van der Velden
|
|
|
Chairman,
President and Chief Executive Officer
|
|
|
(Principal
Executive Officer)
|
Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
|
Person
|
Capacity
|
Date
|
||
|
/s/ Steven van der
Velden
|
Chairman
of the Board of Directors, President and Chief Executive Officer
(Principal Executive Officer)
|
December
17, 2010
|
||
|
Steven
van der Velden
|
||||
|
/s/ Mark Nije*
|
Chief Financial
Officer (Principal Accounting Officer)
|
December
17, 2010
|
||
|
Mark
Nije
|
||||
|
/s/ Martin Zuurbier*
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Chief Operating
Officer, Chief Technical Officer, Director.
|
December
17, 2010
|
||
|
Martin
Zuurbier
|
||||
|
/s/ Yves R. van
Sante*
|
Director
|
December
17, 2010
|
||
|
Yves
R. van Sante
|
||||
|
/s/ Johan Dejager*
|
Director
|
December
17, 2010
|
||
|
Johan
Dejager
|
||||
|
/s/ Roderick de
Greef*
|
Director
|
December
17, 2010
|
||
|
Roderick
de Greef
|
||||
|
/s/ Phil Hickman*
|
Director
|
December
17, 2010
|
||
|
Phil
Hickman
|
|
*
|
By:
|
/s/ Steven van der
Velden
|
|
|
Name:
Steven van der Velden
Attorney-in-Fact
|