UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S - 8
REGISTRATION
STATEMENT UNDER THE
SECURITIES
ACT OF 1933
ATSI
COMMUNICATIONS, INC.
(Exact
name of registrant as specified in its charter)
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Nevada
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74-2849995
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(State
or Other Jurisdiction of Incorporation
or Organization)
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(IRS
Employer Identification
No.)
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8600
Wurzbach Road, Suite 700W
San
Antonio, Texas
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78240
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(Address
of Principal Offices)
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(Zip
Code)
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2005
Stock Compensation Plan
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(Full
Title of the Plan)
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Arthur
L. Smith
8600
Wurzbach Road, Suite 700W
San
Antonio, Texas 78240
With
a Copy to
Lawrence
E. Wilson
Franklin,
Cardwell & Jones
1001
McKinney, 18th
Floor
Houston,
TX 77002
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(Name
and Address of Agent For
Service)
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CALCULATION
OF REGISTRATION FEE
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Title
of Each
Class
Of
Securities
To
Be
Registered1
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Amount
To
Be
Registered1
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Proposed
Maximum
Offering
Price
Per
Share2
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Proposed
Maximum
Aggregate
Offering
Price2
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Amount
Of
Registration
Fee
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Common
Stock,
$.001
par value per share
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7,500,000
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$0.22
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$1,650,000
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$176.55
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1
In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be
offered or sold pursuant to the employee benefit plans(s) described
herein.
2 Pursuant
to Rule 457(h) under the Securities Act of 1933, the offering price of shares
of
Common Stock to be purchased pursuant to the Plan is based on the last
transaction price on December 9, 2005 for the purposes of computing the filing
fees.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
information specified in Item 1 and Item 2 of Part I of the Registration
Statement on Form S-8 (the “Registration Statement”) is omitted from this filing
in accordance with the provisions of Rule 428 under the Securities Act and
the
introductory note to Part I of the Registration Statement. The documents
containing the information specified in Part I will be delivered to the
participants in the plan covered by this Registration Statement as required
by
Rule 428(b)(1).
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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The
following documents filed with the Securities and Exchange Commission (the
“Commission”) by ATSI Communications, Inc. (the “Company”) pursuant to the
Securities Act and the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), are hereby incorporated by reference in this registration
statement:
(a)
The
Company’s Annual Report on Form 10-KSB/A for the year ended July 31, 2005 filed
on November 2, 2005; and
(b)
The
description of the Company’s common stock in Form
10-SB filed on August 21, 1997 pursuant to Section 12(g) of the Securities
Exchange Act of 1934.
All
documents that the Company subsequently files pursuant to Sections 13(a),
13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such
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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Item
4.
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Description
of Securities.
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Not
applicable.
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Item
5.
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Interests
of Named Experts and
Counsel.
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Not
applicable.
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Item
6.
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Indemnification
of Directors and Officers.
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Subsection
1 of Section 78.037 of the Nevada Revised Statutes (the “Nevada Law”) empowers a
corporation to eliminate or limit the personal liability of a director or
officer to the corporation or its stockholders for damages for breach of
fiduciary duty as a director or officer, but such a provision must not eliminate
or limit the liability of a director or officer for (a) acts or omissions
which
involve intentional misconduct, fraud or a knowing violation of law or (b)
the
payment of distributions in violation of Section 78.300 of the Nevada
Law.
Subsection
1 of Section 78.7502 of the Nevada Law empowers a corporation to indemnify
any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the
right of the corporation) by reason of the fact that he or she is or was
a
director, officer, employee or agent of the corporation or is or was serving
at
the request of the corporation as a director, officer, employee or agent
of
another corporation, partnership, joint venture, trust or other enterprise
(an
“Indemnified Party”), against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
the
Indemnified Party in connection with such action, suit or proceeding if the
Indemnified Party acted in good faith and in a manner the Indemnified Party
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceedings, had
no
reasonable cause to believe the Indemnified Party’s conduct was
unlawful.
Subsection
2 of Section 78.7502 of the Nevada Law empowers a corporation to indemnify
any
Indemnified Party who was or is a party or is threatened to be made a party
to
any threatened, pending or completed action or suit by or in the right of
the
corporation to procure a judgment in its favor by reason of the fact that
such
person acted in the capacity of an Indemnified Party against expenses, including
amounts paid in settlement and attorneys’ fees actually and reasonably incurred
by the Indemnified Party in connection with the defense or settlement of
such
action or suit if the Indemnified Party acted under standards similar to
those
set forth above, except that no indemnification may be made in respect of
any
claim, issue or matter as to which the Indemnified Party shall have been
adjudged to be liable to the corporation or for amounts paid in settlement
to
the corporation unless and only to the extent that the court in which such
action or suit was brought determines upon application that in view of all
the
circumstances the Indemnified Party is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
Section
78.7502 of the Nevada Law further provides that to the extent an Indemnified
Party has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsection (1) or (2) described
above
or in the defense of any claim, issue or matter therein, the corporation
shall
indemnify the Indemnified Party against expenses (including attorneys’ fees)
actually and reasonably incurred by the Indemnified Party in connection
therewith.
Subsection
1 of Section 78.751 of the Nevada Law provides that any discretionary
indemnification under Section 78.7502 of the Nevada Law, unless ordered by
a
court or advanced pursuant to Subsection 2 of Section 78.751, may be made
by a
corporation only as authorized in the specific case upon a determination
that
indemnification of the Indemnified Person is proper in the circumstances.
Such
determination must be made (a) by the stockholders, (b) by the board of
directors of the corporation by majority vote of a quorum consisting of
directors who were not parties to the action, suit or proceeding, (c) if
a
majority vote of a quorum of such disinterested directors so orders, by
independent legal counsel in a written opinion, or (d) by independent legal
counsel in a written opinion if a quorum of such disinterested directors
cannot
be obtained.
Subsection
2 of Section 78.751 of the Nevada Law provides that a corporation’s articles of
incorporation or bylaws or an agreement made by the corporation may require
the
corporation to pay as incurred and in advance of the final disposition of
a
criminal or civil action, suit or proceeding, the expenses of officers and
directors in defending such action, suit or proceeding upon receipt by the
corporation of an undertaking by or on behalf of the officer or director
to
repay the amount if it is ultimately determined by a court that he is not
entitled to be indemnified by the corporation. Said Subsection 2 further
provides that the provisions of that Subsection 2 do not affect any rights
to
advancement of expenses to which corporate personnel other than officers
and
directors may be entitled under contract or otherwise by law.
Subsection
3 of Section 78.751 of the Nevada Law provides that indemnification and
advancement of expenses authorized in or ordered by a court pursuant to said
Section 78.751 does not exclude any other rights to which the Indemnified
Party
may be entitled under the articles of incorporation or any by-law, agreement,
vote of stockholders or disinterested directors or otherwise, for either
an
action in his official capacity or in another capacity while holding his
office.
However, indemnification, unless ordered by a court pursuant to Section 78.7502
or for the advancement of expenses under Subsection 2 of Section 78.751 of
the
Nevada Law, may not be made to or on behalf of any director or officer of
the
corporation if a final adjudication establishes that his or her acts or
omissions involved intentional misconduct, fraud or a knowing violation of
the
law and was material to the cause of action. Additionally, the scope of such
indemnification and advancement of expenses shall continue as to an Indemnified
Party who has ceased to hold one of the positions specified above, and shall
inure to the benefit of his or her heirs, executors and
administrators.
Section
78.752 of the Nevada Law empowers a corporation to purchase and maintain
insurance or make other financial arrangements on behalf of an Indemnified
Party
for any liability asserted against such person and liabilities and expenses
incurred by such person in his or her capacity as an Indemnified Party or
arising out of such person’s status as an Indemnified Party whether or not the
corporation has the authority to indemnify such person against such liability
and expenses.
The
above-described provisions relating to the exclusion of liability and
indemnification of directors and officers are sufficiently broad to permit
the
indemnification of such persons in certain circumstances against liabilities
arising under the Securities Act.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to our directors and officers, and to persons controlling our company
pursuant to the foregoing provisions, we have been informed that in the opinion
of the Securities and Exchange Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
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Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
The
following exhibits are filed as a part of this Registration Statement pursuant
to Item 601 of Regulation S-B.
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4.1
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2005
Stock Compensation Plan.
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5.1
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Opinion
of Franklin, Cardwell & Jones.
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23.1
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Consent
of Malone & Bailey, PC, independent registered public accounting firm.
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23.2
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Consent
of Franklin, Cardwell & Jones (included in Exhibit 5.1).
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24.1
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Power
of Attorney (included on Signature
Page).
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(a) The
undersigned registrant hereby undertakes to
(1) 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) for
determining liability under the Securities Act, treat each post-effective
amendment as a new registration statement of the securities offered, and
the
offering of the securities at that time to be the initial bona fide offering
thereof.
(3) File
a
post-effective amendment to remove from registration any of the securities
that
remain unsold at the end of the offering.
(b) 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 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to
the
securities offered herein, 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 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 Registration Statement to be
signed
on its behalf by the undersigned, thereunto duly authorized, in the City
of San
Antonio, and the State of Texas, on December 1, 2005.
| ATSI COMMUNICATIONS,
INC.
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| By: |
/s/ Arthur
L. Smith |
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Arthur L. Smith
Chief Executive Officer
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| By: |
/s/ Antonio
Estrada |
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Antonio
Estrada
Chief
Financial Officer
Chief
Accounting Officer
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Each
person whose signature appears below constitutes and appoints Arthur L. Smith
and Antonio Estrada true and lawful attorneys-in-fact and agents, each acting
alone, with full powers of substitution and re-substitution, for him and
in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and
to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full powers and authority
to do
and perform each and every act and thing requisite and necessary to be done
in
and about the premises, as fully to all intents and purposes as he might
or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, each acting alone, or his or her substitute
or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed below by the following persons in the capacities indicated
on
December 1, 2005.
| /s/ John
R. Fleming |
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/s/ Arthur
L. Smith |
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John R. Fleming
Director
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Arthur L. Smith
Director
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| /s/ Murray
R. Nye |
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Murray R. Nye
Director
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EXHIBIT
INDEX
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4.1
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2005
Stock Compensation Plan
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5.1
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Opinion
of Franklin, Cardwell & Jones
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23.1
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Consent
of Malone & Bailey, PC
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23.2
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Consent
of Franklin, Cardwell & Jones (included in Exhibit
5.1)
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24.1
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Power
of Attorney (included on Signature
Page)
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