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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1999
REGISTRATION NO. 333-
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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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E-SYNC NETWORKS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-0625999
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
35 NUTMEG DRIVE
TRUMBULL, CONNECTICUT 06611
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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1994 EMPLOYEES' STOCK OPTION PLAN
AND
1999 LONG-TERM INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
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DAVID S. TEITELMAN
PRESIDENT
35 NUTMEG DRIVE
TRUMBULL, CONNECTICUT 06611
(203) 601-3000
(NAME, ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
DAVID I. ALBIN, ESQ.
FINN DIXON & HERLING LLP
ONE LANDMARK SQUARE
STAMFORD, CONNECTICUT 06901
(203) 325-5000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED TO BE REGISTERED PRICE PER SHARE OFFERING PRICE FEE
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Common Stock, $.01 par
value.................... 1,143,000 shares 2.82(1) 3,223,260(1) 850.94(1)
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(1) Estimated in accordance with Rule 457(h) and Rule 457(c) solely for the
purpose of calculating the registration fee on the basis of the weighted
average of (i) $2.82 per share for 1,138,309 options granted to date and
outstanding under the plans; and (ii) $5.50 per share for the remaining
4,691 shares issuable under the plans, which price is the average of the
closing bid and asked prices per share of Common Stock of the Registrant
reported on the National Quotations Bureau "pink sheets" on December 14,
1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year
ended October 31, 1998, as amended by Form 10-KSB/A-1 with respect thereto,
filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(b) The Company's Current Report on Form 8-K dated January 28, 1999,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act;
(c) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended January 31, 1999, filed pursuant to Section 13(a) or 15(d) of
the Exchange Act;
(d) The Company's Current Report on Form 8-K dated March 5, 1999,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act;
(e) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 1999, filed pursuant to Section 13(a) or 15(d) of
the Exchange Act;
(f) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended June 30, 1999, filed pursuant to Section 13(a) or 15(d) of
the Exchange Act;
(g) The Company's definitive proxy statement for the Annual Meeting of
Shareholders held on July 15, 1999, filed pursuant to Section 14(a) of the
Exchange Act;
(h) The Company's Current Report on Form 8-K dated July 28, 1999,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act;
(i) The Company's Quarterly Report on Form 10-QSB for the fiscal
quarter ended September 30, 1999, filed pursuant to Section 13(a) or 15(d)
of the Exchange Act;
(j) The Company's Current Report on Form 8-K dated November 8, 1999,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act; and
(k) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated February 27, 1967, filed
by the Company (then known as Trak Electronics Company, Inc.) pursuant to
Section 12(g) of the Exchange Act.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered 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 reports or documents. Statements made herein as to the contents
of any contract, agreement or other document are not necessarily complete. With
respect to each such contract, agreement or other document filed as an exhibit
to the Registration Statement, reference is made to the exhibit for a more
complete description of the matter involved, and each such statement shall be
deemed qualified in its entirety by such reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
empowers a corporation incorporated under the General Corporation Law to
indemnify its present and former directors, officers, employees and agents and
those who serve, or served, in such capacities with another enterprise at its
request, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlements actually and reasonably incurred by them in
connection with 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), in which such persons were or are made
parties or are threatened to be made parties by reason of their serving or
having served in such capacity. The power to indemnify exists only where such
officer, director, employee or agent has 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, in the case of a criminal action, such person had no reasonable
cause to believe his conduct was unlawful. In a threatened, pending or completed
action or suit by or in the right of the corporation, the corporation may
indemnify such person only for expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
except that if such person has been adjudged liable to the corporation then the
corporation shall have no power of indemnification unless and only to the extent
that a court shall determine upon application. Indemnity is mandatory as to
expenses (including attorneys' fees) actually and reasonably incurred by a
present or former director or officer of a corporation to the extent a claim,
issue or matter has been successfully defended. Expenses (including attorneys'
fees) incurred by an officer or director in defending any such action, suit or
proceeding may be paid by the corporation in advance of final disposition upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it is ultimately determined that he is not entitled to be indemnified by the
corporation. Indemnification is not deemed exclusive of any other rights to
which those indemnified may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Any indemnification may be
made only as authorized in the specific case upon a determination by the
corporation that indemnification is proper under the circumstances because the
person seeking to be indemnified has met the applicable standards of conduct set
forth in the statute. With respect to the indemnification of a person who is a
director or officer of the corporation at the time that determination is being
made, such determination must be made by (i) a majority vote of disinterested
directors even though less than a quorum, (ii) by a committee of such directors
designated by a majority vote of such directors, (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iv) by the stockholders. A Delaware corporation also has
the power to purchase and maintain insurance on behalf of the persons it has the
power to indemnify against liabilities asserted against such persons, whether or
not indemnity against such liabilities would be permitted under the statute
itself.
The Company's Certificate of Incorporation provides that the Company shall
indemnify, and advance expenses, to the fullest extent permitted by Section 145
of the Delaware General Corporation Law, as amended from time to time, to each
person that such section grants the Company the power to indemnify and advance
expenses to.
As permitted by Section 102 of the Delaware General Corporation Law, the
Company's Certificate of Incorporation also provides that no director of the
Company shall be personally liable to the Company or any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except for any
liability of a director (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
improper dividend payments or unlawful stock purchases or redemptions, or (iv)
for any transaction from which the director derived an improper personal
benefit. The Certificate of Incorporation further provides that to the extent
that the General Corporation Law is amended to authorize corporate action
further eliminating
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or limiting the personal liability of directors, then the liability of a
director of the corporation shall be eliminated or limited to the fullest extent
permitted by such law, as so amended.
The Company also presently maintains directors' and officers' insurance
which could affect the liability of such persons.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER
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4.1 Certificate of Incorporation of E-Sync Networks, Inc. (the
"Company"), incorporated by reference to Exhibit 3(i) to the
Company's Current Report on Form 8-K, dated July 28, 1999
(the "July 1999 8-K").
4.2 Certificate of Designations, Preferences and Rights of
Preferred Stock of the Company, setting forth the terms of
the "Senior Convertible Series A Preferred Stock" of the
Company, incorporated by reference to Exhibit 3(ii) to the
July 1999 8-K
4.3 By-laws of the Company, incorporated by reference to Exhibit
3(iii) to the July 1999 8-K
4.4* 1994 Employees' Stock Option Plan, as amended (the "1994
Plan").
4.5* Form of Incentive Stock Option Agreement under the 1994
Plan.
4.6* 1999 Long-Term Incentive Plan (the "1999 Plan").
4.7* Form of Incentive Stock Option Agreement under the 1999
Plan.
4.8* Form of Non Qualified Stock Option Agreement under the 1999
Plan.
4.9* Form of Non Qualified Stock Option Agreement under the 1999
Plan, pertaining to grants to non-employee directors.
4.10* Certificate of Designations, Preferences and Rights of
Senior Convertible Series B Preferred Stock of the Company.
5.1* Opinion of Finn Dixon & Herling LLP, as to the legality of
the securities being registered.
23.1* Consent of Grant Thornton LLP.
23.2 Consent of Finn Dixon & Herling LLP (contained in Exhibit
5.1 hereto).
24.1 Power of Attorney (included on the signature pages).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information set forth in
the registration statement; and 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 and 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
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(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act of 1933, 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.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
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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 Town of Trumbull, State of Connecticut on this 12th day of
November, 1999.
E-SYNC NETWORKS, INC.
By: /s/ DAVID S. TEITELMAN
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Name: David S. Teitelman
Title: President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints John C. Maxwell III, David S. Teitelman
and Frank J. Connolly, Jr., or any of them, his attorneys-in-fact and agents,
with full power of substitution and resubstitution for him in any and all
capacities, to sign any and all amendments or post-effective amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto each of such attorneys-in-fact and agents full power and authority
to do and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming all that each
of such attorney's-in-fact and agents or his substitute or substitutes may 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 in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ JOHN C. MAXWELL, III Chief Executive Officer, November 12, 1999
- ------------------------------------ Chairman of the Board and
John C. Maxwell, III Director
(principal executive officer)
/s/ FRANK J. CONNOLLY, JR. Chief Financial Officer and November 12, 1999
- ------------------------------------ Corporate Secretary
Frank J. Connolly, Jr. (principal financial officer
and accounting officer)
/s/ DAVID S. TEITELMAN President and Director November 12, 1999
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David S. Teitelman
/s/ PETER J. BONI Director November 12, 1999
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Peter J. Boni
/s/ STEPHEN D. GRUBBS Director November 12, 1999
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Stephen D. Grubbs
/s/ NATHAN GANTCHER Director November 12, 1999
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Nathan Gantcher
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EXHIBIT INDEX
EXHIBIT
NO. DESCRIPTION
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4.1 Certificate of Incorporation of E-Sync Networks, Inc. (the
"Company"), incorporated by reference to Exhibit 3(i) to the
Company's Current Report on Form 8-K, dated July 28, 1999
(the "July 1999 8-K").
4.2 Certificate of Designations, Preferences and Rights of
Preferred Stock of the Company, setting forth the terms of
the "Senior Convertible Series A Preferred Stock" of the
Company, incorporated by reference to Exhibit 3(ii) to the
July 1999 8-K.
4.3 By-laws of the Company, incorporated by reference to Exhibit
3(iii) to the July 1999 8-K
4.4* 1994 Employees' Stock Option Plan, as amended (the "1994
Plan").
4.5* Form of Incentive Stock Option Agreement under the 1994
Plan.
4.6* 1999 Long-Term Incentive Plan (the "1999 Plan").
4.7* Form of Incentive Stock Option Agreement under the 1999
Plan.
4.8* Form of Non Qualified Stock Option Agreement under the 1999
Plan.
4.9* Form of Non Qualified Stock Option Agreement under the 1999
Plan, pertaining to grants to non-employee directors.
4.10* Certificate of Designations, Preferences and Rights of
Senior Convertible Series B Preferred Stock of the Company.
5.1* Opinion of Finn Dixon & Herling LLP, as to the legality of
the securities being registered.
23.1* Consent of Grant Thornton LLP.
23.2 Consent of Finn Dixon & Herling LLP (contained in Exhibit
5.1 hereto).
24.1 Power of Attorney (included on the signature pages).
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* Filed herewith.
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