FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 2, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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COVISTA COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
NEW JERSEY 4813 22-1656895
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(State or Other Juris- (Primary Standard (I.R.S. Employer
diction of Incorporation Industrial Classi- Identification
or Organization) fication Code Number) Number)
150 Clove Road, Little Falls, New Jersey 07424
(973) 812-1100
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Covista Communications, Inc. 1999 Equity Incentive Plan
(Full Title of the Plan)
A. John Leach, Jr.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COVISTA COMMUNICATIONS, INC.
150 Clove Road, Little Falls, New Jersey
(973) 812-1100
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of Each Class Proposed Maximum Proposed Maximum Amount of
Of Securities to Amount to be Offering Price Per Aggregate Offering Registration
be Registered Registered (1) Share (2) Price (2) Fee
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Covista Communications, 750,000 shares(1) $9.30 $6,975,000 $1,750.00
Inc. 1999 Equity Incentive Plan
Common Stock, $.05 par value
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(1) This Registration Statement also shall cover any additional shares of
the Registrant's Common Stock that become issuable under the Covista
Communications, Inc. 1999 Equity Incentive Plan by reason of any stock
dividend, stock split or similar transaction effected without the
Registrant's receipt of consideration that results in an increase in
the number of outstanding shares of the Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) under
the Securities Act of 1933, as amended, on the basis of the last sale
price for the Registrant's Common Stock on October 31, 2001, as
reported by the Nasdaq National Market.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Covista Communications, Inc. (the "Registrant")
are hereby incorporated by reference in this Registration Statement.
(i) Annual Report on Form 10-K for the year ended January 31, 2001,
as amended by Amendment No. 1 on Form 10-K/A and Amendment No. 2
on Form 10-K/A;
(ii) Quarterly Reports on Form 10-Q for the quarters ended April 30,
2001 and July 31, 2001; and (iii) Current Report on Form 8-K
filed on July 19, 2001.
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 a New Jersey corporation. Under the New Jersey
Business Corporation Act (the "NJBCA"), a corporation may provide in its
certificate of incorporation that a director or officer shall not be personally
liable, or shall be liable only to the extent therein provided, to the
corporation or its stockholders for damages from the breach of any duty owed to
the corporation or its stockholders, except that such provision shall not
relieve a director or officer from liability for any breach of duty based upon
an act or omission (1) in breach of such person's duty of loyalty to the
corporation or its stockholders; (2) not in good faith or involving a knowing
violation of law; or (3) resulting in receipt by such person of an improper
personal benefit.
Article 8 of the Registrant's Certificate of Incorporation provides
that except as provided under the NJBCA, directors of the Registrant shall not
be personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duties as a director. The same Article 8 also provides
that any repeal or modification of this provision will not adversely affect any
right or protection of a director of the Registrant, with regard to any action
taken prior the time of such repeal or modification.
Under the NJBCA, a corporation may indemnify a corporate agent against
his expenses and liabilities (including but not limited to fines and penalties)
in connection with any proceeding involving the corporate agent by reason of his
being or having been such a corporate agent, other than a proceeding by or in
the right of the corporation, if (1) such corporate agent acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and (2) with respect to any criminal proceeding,
such corporate agent had no reasonable cause to believe his conduct was
unlawful. Indemnification against expenses incurred by a corporate agent in
connection with a proceeding against such corporate agent for actions in such
capacity is mandatory to the extent that such corporate agent has been
successful on the merits in a proceeding involving such corporate agent in his
capacity as such. If a corporate agent is determined to be liable to the
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corporation, indemnification for expenses is not allowable, subject to limited
exceptions when a court deems the award of expenses appropriate. Advancement of
expenses is permitted, but a corporate agent receiving such advances must repay
those expenses if it is ultimately determined he is not entitled to be
indemnified. The indemnification and advancement of expenses provided by or
granted pursuant the NJBCA does not exclude any other rights, including the
right to be indemnified against liabilities and expenses incurred in proceedings
by or in the right of the corporation, to which a corporate agent may be
entitled under a certificate of incorporation, bylaw, agreement, vote of
stockholders, or otherwise; provided that, under the NJBCA, no indemnification
may be made to or on behalf of a corporate agent if a judgment or other final
adjudication adverse to the corporate agent establishes that his acts or
omissions, (1) were in breach of his duty of loyalty to the corporation or its
stockholders; (2) were not in good faith or involved a knowing violation of law;
or (3) resulted in receipt by the corporate agent of an improper personal
benefit.
The Registrant's Certificate of Incorporation and Bylaws are silent on
the matter of indemnification of directors and officers. However, the Registrant
has entered into an indemnification agreement with each of its directors and
officers that obligates the Registrant to indemnify such persons to the maximum
extent permitted by New Jersey law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
Exhibit No. Description of Document
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4.1 Certificate of Incorporation of Covista Communications,
Inc., as amended. Filed as Exhibit 3.1 to the
Registrant's registration statement on Form S-4,
No 333-69644, filed on September 19, 2001 ("Registration
No. 333-69644") and hereby incorporated herein by
reference.
4.2 By-Laws of Covista Communications, Inc., as amended.
Filed as Exhibit 3.2 to Registration No 333-69644
and hereby incorporated herein by reference.
5.1 Opinion of Jay J. Miller, Esq. Filed herewith.
23.1 Consent of Deloitte & Touche LLP. Filed herewith.
23.2 Consent of Jay J. Miller (included in Exhibit 5.1 and
incorporated herein by reference).
24.1 Reference is made to page II-4 of this Registration
Statement.
99.1 1999 Equity Incentive Stock Plan of Covista
Communications, Inc.
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 or prospectus supplement to this registration
statement:
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(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. 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% 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the registration statement is on Form S-3, Form 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 he registrant pursuant to section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into this 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; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned 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
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 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, 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.
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SIGNATURES
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, thereunto duly authorized in Little Falls, New
Jersey, on November 2, 2001.
By: /s/ A. JOHN LEACH, JR.
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Name: A. John Leach, Jr.
Title: President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints A. John Leach, Jr. and Thomas P. Gunning,
and each of them, as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, 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 attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or 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 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 of 1933, this
registration statement has been signed by the following persons on November 2,
2001 in the capacities indicated.
NAME TITLE
/s/ A. JOHN LEACH JR.
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A. John Leach, Jr. President and Chief Executive Officer and Director
(Principal Executive Officer)
/s/ THOMAS P. GUNNING
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Thomas P. Gunning Vice President, Treasurer, Secretary, Chief Financial
Officer (Principal Financial and Accounting Officer)
/s/ HENRY G. LUKEN, III
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Henry G. Luken, III Chairman of the Board
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NAME TITLE
/s/ KEVIN ALWARD
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Kevin Alward Chief Operating Officer and Director
/s/ WALT ANDERSON
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Walt Anderson Director
/s/ LEON GENET
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Leon Genet Director
/s/ JAY J. MILLER
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Jay J. Miller Director
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