As filed with the Securities and Exchange Commission [ ]
Registration No. 33-[ ]
Securities and Exchange Commission
Washington, D.C. 20549
------------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Spectrum Information Technologies, Inc.
(Exact name of registrant as specified in its charter)
Delaware 75-1940923
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2700 Westchester Avenue 10577
Purchase, New York (Zip Code)
(Address of Principal Executive
Offices)
Spectrum Information Technologies, Inc.
1996 Stock Incentive Plan
Donald J. Amoruso
2700 Westchester Avenue
Purchase, New York 10577
(914) 251-1800
(Name, address and telephone
number of agent for service)
Copy to:
Arthur Kohn, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
(212) 225-2000
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
registered registered Share (1) Price (1) Fee
- -------------- ------------ ----------- ------------ --------------
Common Stock, 290,000 $5.32 1,542,800 $467.52
par
value $.001
- -------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) on the basis of the
average of the high bid ($.15) and the low offer ($.165) sales
prices per share of Spectrum Information Technologies, Inc.
Common Stock as reported by the National Quotation Bureau for
stock traded on the NASDAQ OTC Bulletin Board and giving effect
to Spectrum's reorganized capital structure as set forth in its
confirmed chapter 11 plan of reorganization. Following the
consummation of the plan of reorganization, Spectrum expects that
a total of approximately 2,271,864 shares of reorganized common
stock and Class A Preferred Stock will be issued and outstanding
on March 31, 1997. Based on the market capitalization of Spectrum
on March 21, 1997 of $12,076,383, Spectrum has estimated the per
share price of common stock to be $5.32 (i.e.,
$12,076,383/2,271,864=$5.32). This estimate is not intended to
forecast the effect of Spectrum's recapitalization on the trading
price of Spectrum's common stock.
Page 1 of 6 total pages
Exhibit Index appears on page 6
Part 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this
Part I will be sent or given to employees as specified by Rule
428(b)(1). These documents and the documents incorporated by
reference in the registration statement pursuant to Item 3 of
Part II of this form, taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Securities
Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents heretofore filed by Spectrum
Information Technologies, Inc. (the "Company" or "Registrant")
with the Securities and Exchange Commission are hereby
incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 1996.
(b) The Company's Quarterly Reports on Form 10-Q for the
periods ended June 30, 1996, September 30, 1996 and December 31,
1996.
(c) The Company's Current Reports on Form 8-K dated March
14, 1996 and August 14, 1996.
(d) The description of the Company's common stock contained
in its Registration Statement on Form 10, dated April 10, 1987
(File No. 015596), filed with the Commission pursuant to Section
12(g) of the Exchange Act, and any amendment or report filed for
the purpose of updating such information, including the
description of the Company's common stock contained in the
Disclosure Statement (including exhibits thereto) filed as
Exhibit 5.1 to the Company's Current Report on Form 8-K dated
March 14, 1996.
All documents hereafter filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment hereto which indicates
that all securities have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to
be part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Registrant is incorporated in Delaware. Under Section
145 of the General Corporation Law of the State of Delaware (the
"DGCL"), a Delaware corporation generally has the power to
indemnify its present and former directors, officers, employees
and agents against expenses and liabilities incurred by them in
connection with any action, suit or proceeding to which they are,
or are threatened to be made, a party by reason of their serving
in those 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 the company, and with respect to any criminal
action or proceeding, so long as they had no reasonable cause to
believe their conduct was unlawful. The statute expressly
provides that the power to indemnify authorized thereby is not
exclusive of any rights granted under any bylaw, agreement, vote
of stockholders or disinterested directors, or otherwise.
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The Restated Certificate of Incorporation of the Registrant
provides that the Company shall indemnify to the full extent
authorized or permitted by law (as now or hereafter in effect)
any person made, or threatened to be made a party or witness to
any action, suit or proceeding (whether civil or criminal or
otherwise) by reason of the fact that he, his testator or
intestate, is or was a director or an officer of the Company or
by reason of the fact that such person, at the request of the
Company, is or was serving any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise,
in any capacity. The Restated Certificate of Incorporation
further provides that nothing contained in such provision shall
affect any rights to indemnification to which employees other
than directors and officers may be entitled by law, and that no
amendment or repeal of such provision shall apply to or have any
effect on any right to indemnification provided pursuant to such
provision with respect to any acts or omissions occurring prior
to such amendment or repeal.
In accordance with Section 102(b)(7) of the DGCL, the
Restated Certificate of Incorporation of the Registrant provides
that directors of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for
any breach of fiduciary duty as a director, except (i) for any
breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under pursuant to Section 174 (relating to liability
for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) of the DGCL, or (iv) for any transactions from
which any such director derived an improper personal benefit. The
Restated Certificate of Incorporation of the Registrant contains
such a provision.
The Registrant maintains insurance for the protection of its
directors and officers against claims asserted against them in
their official capacities.
The Registrant has entered into separate indemnity
agreements with certain of its executive officers (the
"Indemnitees"), under which the Registrant will, upon proper
request of the Indemnitee, indemnify him if such Indemnitee is a
party to or is threatened to be made a party to or is otherwise
involved in any third party proceedings or proceedings by or in
the right of the Registrant to procure a judgment in its favor by
reason of the fact that the Indemnitee is or was director,
officer, employee or agent of the Registrant or is or was serving
at the request of the Registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against all expenses, judgments, fines
and penalties, actually and reasonably incurred by the Indemnitee
in connection with the defense or settlement of any of such
proceedings. Such right shall be a contract right and shall
include the right to be paid by the Registrant expenses incurred
in defending any such proceeding in advance of its final
disposition; provided, however, that the payment of such expenses
incurred by the Indemnitee in his capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by an Indemnitee while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of such proceeding will be paid
only upon delivery to the Registrant of an undertaking, by or on
behalf of the Indemnitee, to repay all amounts so advanced if it
should be determined ultimately that the Indemnitee is not
entitled to be indemnified under this section or otherwise.
The preceding discussion of the Restated Certificate of
Incorporation of the Registrant and the DGCL is not intended to
be exhaustive and is qualified in its entirety by reference to
the complete texts of the Restated Certificate of Incorporation
of the Registrant and to the DGCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following are filed as exhibits to this Registration
Statement:
Exhibits
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-8 regarding
Spectrum's 1996 Incentive Deferral Plan).
4.2 Restated Bylaws of the Company (incorporated by reference
to Exhibit 5.1 of the Registrant's Current Report on Form
8-K dated March 14, 1996).
3
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton.
24.1 Consent of BDO Seidman, LP.
24.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included
in Exhibit 5.1).
28.1 Spectrum Information Technologies, Inc. 1996 Stock
Incentive Plan.
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 of 1933;
(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;
(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 or Form S-8 and the
information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(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 of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15 (d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(c) 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.
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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 Purchase, State of New York, on March 31, 1997.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By /s/ Donald J. Amoruso
------------------------------------
Donald J. Amoruso
Chief Executive Officer, President and
Chairman of the Board
By: /s/ Barry J. Hintze
------------------------------------
Barry J. Hintze
Controller and Principal Accounting
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities set forth on March 31, 1997.
Signature Title
/s/ Donald J. Amoruso Director
- -----------------------------
Donald J. Amoruso
/s/ Sheldon Buckler Director
- -----------------------------
Sheldon Buckler
/s/ George Bugliarello Director
- -----------------------------
George Bugliarello
/s/ Robert Dalziel Director
- -----------------------------
Robert Dalziel
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EXHIBIT INDEX
Exhibit
No. Description Page No.
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-8 regarding
Spectrum's 1996 Incentive Deferral Plan).
4.2 Restated Bylaws of the Company (incorporated
by reference to Exhibit 5.1 of the Registrant's Current
Report on Form 8-K dated March 14, 1996).
5.1 Opinion of Cleary, Gottlieb, Steen & Hamilton
24.1 Consent of BDO Seidman, LP
24.2 Consent of Cleary, Gottlieb, Steen & Hamilton (included
in Exhibit 5.1)
28.1 Spectrum Information Technologies, Inc. 1996
Stock Incentive Plan (incorporated by reference
to Exhibit 5.1 of the Registrant's Current Report
on Form 8-K dated March 14, 1996).
6