Registration No. 333-_____
As filed with the Securities and Exchange Commission on May 24, 2002
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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TELEBYTE, INC.
(Exact name of registrant as specified in its charter)
Delaware 11-2510138
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Kenneth S. Schneider
Chairman of the Board and Chief Executive Officer
270 Pulaski Road
Greenlawn, New York 11740
(631) 423-3232
(Address, including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices and Agent For Service)
Telebyte, Inc. 2001 Stock Option Plan
Telebyte, Inc. 2001 Employee Stock Purchase Plan
(Full title of the plans)
Copy to:
Shalom Leaf, Esq.
Hogan & Hartson L.L.P.
551 Fifth Avenue
New York, New York 10176
(212) 661-6500
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed Amount
Amount Offering Maximum of
Title of Securities to be Price Aggregate Registration
to be Registered Registered Per Share (2) Offering Price (2) Fee
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Common Stock, $.01 par 900,000 shares (1) $0.78 $702,000 $65
value per share (the "Common
Stock")
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(1) The number of shares of Common Stock stated above consists of 500,000
shares of Common Stock which is the aggregate number of shares of Common
Stock which may be sold upon the exercise of options granted under the
Telebyte, Inc. 2001 Stock Option Plan and 400,000 shares of Common Stock
which is the aggregate number of shares of Common Stock which may be sold
under the Telebyte, Inc. 2001 Employee Stock Purchase Plan.
(2) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
calculating the amount of the registration fee based on the average of the
bid and ask prices quoted for one share of Common Stock on the
Over-the-Counter Bulletin Board on May 21, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
will be sent or given to employees as specified by Rule 428(b)(1) of the
Securities Act. In accordance with the Note to Part I of Form S-8, such
documents will not be filed with the Securities and Exchange Commission (the
"Commission"). Such 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.
Item 2. Registrant Information and Employee Plan Annual Information.
Telebyte, Inc. (the "Registrant") will provide participants, upon written
or oral request, with copies of the documents incorporated by reference in Item
3 of Part II of this Registration Statement and other documents required to be
delivered to participants in the Registrant's 2001 Stock Option Plan and 2001
Employee Stock Purchase Plan pursuant to Rule 428(b) of the Securities Act,
without charge. Requests should be directed to Telebyte, Inc., 270 Pulaski Road,
Greenlawn, New York 11740, Attention: Michael Breneisen at (631) 423-3232.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents filed by it with the Securities and Exchange
Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-KSB filed for the fiscal
year ended December 31, 2001 and filed with the Commission on April
1, 2002;
(b) All reports filed by the Registrant with the Commission pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") since December 31, 2001; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Form 8-A/A Amendment No. 1 filed by the Registrant with
the Commission on May 20, 2002 for the purpose of updating the
description of its Common Stock contained in its original Form 8-A,
and exhibits thereto, filed by the Registrant with the Commission on
April 23, 1984.
All documents subsequently filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act (except, with
respect to Current Reports on Form 8-K, any information furnished under Item 9),
prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities registered pursuant to this Registration
Statement have been sold or which deregisters all such securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded 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 prior statement. Any such
statement so modified or superseded shall not be deemed to constitute a part of
this Registration Statement, except as so modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware, as
amended (the "Delaware General Corporation Law"), sets forth certain
circumstances under which a corporation may indemnify directors, officers,
employees and agents against liabilities that they may incur in their capacity
as such. The Registrant's Certificate of Incorporation and By-laws provide for
indemnification of its directors, officers, employees and agents to the fullest
extent permitted by Delaware General Corporation Law. These indemnification
provisions may be sufficiently broad to permit indemnification of the
Registrant's officers and directors for liabilities (including reimbursement of
expenses incurred) arising under the Securities Act. The Registrant has
purchased liability insurance on behalf of its directors, officers and
employees.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation and By-laws provide that directors
of the Registrant shall not be liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability for (i) any breach of the director's duty of loyalty to the Registrant
or its stockholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) unlawful payment of
dividends or unlawful stock purchase or redemption or (iv) any transaction from
which the director derived an improper personal benefit. As a result of this
provision, the Registrant and its stockholders may be unable to obtain monetary
damages from a director for breach of his or her duty of care.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors and officers of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission 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 or officer
of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director or officer 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 Specimen Stock Certificate
4.2 Certificate of Incorporation
4.3 Certificate of Ownership and Merger
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4.4 By-laws
4.6 Form of Telebyte, Inc. 2001 Stock Option Plan
4.7 Form of Telebyte, Inc. 2001 Employee Stock Purchase Plan
5 Opinion of Hogan & Hartson L.L.P.
23.1 Consent of Grant Thornton LLP
23.2 Consent of Hogan & Hartson L.L.P.
24 Power of Attorney
Item 9. Undertakings.
(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 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 Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, S-8 or
Form F-3, and 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 Commission by
the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
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(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange 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 this 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) The undertaking concerning indemnification is set forth under the
response to Item 6.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Greenlawn, State of New York, on May 23, 2002.
TELEBYTE, INC.
By: /s/ Kenneth Schneider
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Kenneth Schneider
Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth Schneider, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her 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 all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power 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 for all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
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 stated.
Signature Title Date
/s/ Kenneth Schneider Chairman of the Board May 23, 2002
- ------------------------ and Chief Executive Officer
Kenneth Schneider (Principal Executive Officer)
/s/ Michael Breneisen President, Chief Financial Officer May 23, 2002
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Michael Breneisen
/s/ Jonathon Casher Director May 23, 2002
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Jonathon Casher
/s/ Jamil Sopher Director May 23, 2002
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Jamil Sopher
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EXHIBIT INDEX
Exhibit No. Description
4.1 Specimen Common Stock certificate (which is herein
incorporated by reference to Exhibit (a) to Form 8-A/A
Amendment No. 1 filed by the Registrant on May 20, 2002 to
amend the Registrant's original Registration Statement on Form
8-A, and exhibits thereto, filed with the Commission on April
23, 1984).
4.2 Certificate of Incorporation of the Registrant as filed with
the Secretary of State of the State of Delaware on June 25,
1999 (which is herein incorporated by reference to Exhibit
3(C) to the Registrant's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1999, filed with the Commission
on March 31, 2000).
4.3 Certificate of Ownership and Merger as filed with the
Secretary of State of the State of Delaware on June 25, 1999
(which is herein incorporated by reference to Exhibit 3(E) to
the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1999, filed with the Commission on
March 31, 2000).
4.4 By-laws of the Registrant as a Delaware corporation (which is
herein incorporated by reference to Exhibit (c) to Form 8-A/A
Amendment No. 1 filed by the Registrant on May 20, 2002 to
amend the Registrant's original Registration Statement on Form
8-A, and exhibits thereto, filed with the Commission on April
23, 1984).
4.5 Form of Telebyte, Inc. 2001 Stock Option Plan (which is herein
incorporated by reference to Exhibit 10(o) to the Registrant's
Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2001, filed with the Commission on April 1,
2002).
4.6 Form of Telebyte, Inc. 2001 Employee Stock Purchase Plan
(which is herein incorporated by reference to Exhibit 10(p) to
the Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 2001, filed with the Commission on
April 1, 2002).
5 Opinion of Hogan & Hartson L.L.P. as to the validity of the
securities registered hereunder (filed herewith).
23.1 Consent of Grant Thornton LLP (filed herewith).
23.2 Consent of Hogan & Hartson L.L.P. (included in Opinion filed
as Exhibit 5).
24 Power of Attorney (included in the signature page to this
Registration Statement).
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