As filed with the Securities and Exchange Commission on August 4, 1997
File No. 333-___________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under the Securities Act of 1933
DIGITAL COMMUNICATIONS TECHNOLOGY CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
State of Delaware 65-0014636
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(State or Other Jurisdiction of Incorporation or (IRS Employer ID No.)
Organization
16910 Dallas Parkway, Suite 100, Dallas, Texas 75248
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(Address of Principal Executive Offices) (Zip Code)
Agreement and Release of All Claims
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(Full Title of the Plan)
Kevin B. Halter, Jr., Secretary,
16910 Dallas Parkway, Suite 100, Dallas, Texas 75248
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(Name and Address of Agent For Service)
(972) 248-1922
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(Telephone Number, Including Area Code, of Agent For Service)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following line: [X]
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Offering Price Per Aggregate Offering
to be Registered Amount to be Share Price Amount of
Registered Registration Fee
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Common Stock 136,364 $0.5625(1) $ 76,704.75 $23.24
Common Stock 50,000 $2.00 (2) $100,000.00 $30.30
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(1) Estimated pursuant to Rule 457(c) of the Securities Act of 1933 solely for
the purpose of calculating the registration fee, based on the closing price of
the Common Stock on the AMEX on July 31, 1997.
(2) As specified in the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents are incorporated by reference into the registration
statement:
1. The Company's Annual Report on Form 10-KSB for the year ended June 30,
1996;
2. The Company's Quarterly Reports on Forms 10-QSB and 10-QSB/A for the
quarters ended September 30, 1996, December 31, 1996 and March 31, 1997;
and
3. The Company's Current Reports on Forms 8-K dated April 3, 1997, April 3,
1997 and May 9, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which de-registers all
securities covered hereby then remaining unsold shall be deemed to be
incorporated as by reference herein and to be part hereof from the date of
filing of such documents, except as to any portion of any future Annual or
Quarterly Report to Stockholders which is deemed to be modified or superseded
for purposes of this Registration Statement to the extent that such statement is
replaced or modified by a statement contained in a subsequently dated document
incorporated by reference or contained in this Registration Statement.
Item 4. Description of Securities.
Securities are registered under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the securities registered pursuant to this
registration statement is being passed upon for the Company by Rudolph L. Ennis,
its General Counsel and Assistant Secretary.
Item 6. Indemnification of Directors and Officers.
The Certificate of Incorporation of the Company provides for the indemnification
of officers, directors, agents and employees of the Company to the fullest
extent permitted by the Delaware General Corporation Law. Pursuant to Section
145 of the Delaware General Corporation Law, the Company generally has the power
to indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in such
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, they had no reasonable cause to believe
their conduct was unlawful. The Company has the power to purchase and maintain
insurance for such persons. The Delaware General Corporation Law also expressly
provides that the power to indemnify authorized thereby is not exclusive of any
rights granted under any certificate of incorporation, bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise.
The above discussion of the Company's Certificate of Incorporation and of
Section 145 of the Delaware Code is not intended to be exhaustive and is
qualified in its entirety by such Certificate of Incorporation and the Delaware
General Corporation Law.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company 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.
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Item 7. Exemption from Registration Claimed.
Does not apply
Item 8. Exhibits.
5 Opinion of Rudolph L. Ennis, Attorney, General Counsel of the Company,
regarding legality
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Rudolph L. Ennis (included in Exhibit 5)
99 Agreement and Release of All Claims dated July 3, 1997 between Hugh C.
Coppen and the Company (the "Plan")
Item 9. Undertakings.
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 (1) (i) and (1) (ii) do not apply if
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
Securities Exchange Act of 1934 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 post effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) 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 (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.
(5) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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(6) 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 is has reasonable grounds to believe that it meets all 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 Dallas, State of Texas, on the 4th day of August,
1997.
DIGITAL COMMUNICATIONS TECHNOLOGY CORPORATION
/s/ Kevin B. Halter
By: ___________________________________________________
Kevin B. Halter, Chairman
Pursuant to the requirements on the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
/s/ Kevin B. Halter
________________________ Chairman and Director August 4, 1997
Kevin B. Halter
/s/ Clifford E. Patton
________________________ President and Chief Executive Officer August 4, 1997
Clifford E. Patton
/s/ Kevin B. Halter, Jr.
________________________ Vice President, Secretary and Director August 4, 1997
Kevin B. Halter, Jr.
/s/ Douglas L. Miller
________________________ Vice President and Chief Financial Officer August 4, 1997
Douglas L. Miller
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/s/ Gary C. Evans
________________________ Director August 4, 1997
Gary C. Evans
/s/ James Smith
________________________ Director August 4, 1997
James Smith
/s/ Don R. Benton
________________________ Director August 4 , 1997
Don R. Benton
Exhibit Index
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Exhibit No. Document
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5 Opinion of Rudolph L. Ennis, Attorney, General Counsel of the Company,
regarding legality
24.1 Consent of Coopers & Lybrand L.L.P.
24.2 Consent of Rudolph L. Ennis (included in Exhibit 5)
99 Agreement and Release of All Claims dated July 3, 1997 between Hugh C.
Coppen and the Company (the "Plan")
Exhibit 5
August 4, 1997
Digital Communications Technology Corporation
16910 Dallas Parkway, Suite 100
Dallas, Texas 75248
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
In connection with your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, in the aggregate of 186,364 shares
of Common Stock (the "Common Stock") of Digital Communications Technology
Corporation (the ""Company") issuable to Hugh C. Coppen, formerly President,
Chief Executive Officer and Director of the Company under an Agreement and
Release of All Claims between Mr.
Coppen and the Company (the "Plan"), it is my opinion that:
(i) the Company has the authority to issue the Common Stock in the manner
and under the terms set forth in the Registration Statement and the Plan;
(ii) the Common Stock has been duly authorized and, subject to effectiveness
of the Registration Statement and when issued and delivered in accordance with
the terms of the Plan, will be validly issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the Registration
Statement and its use as a part of the Registration Statement.
Very truly yours,
/s/ Rudolph L. Ennis
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Rudolph L. Ennis
General Counsel of the Company
Exhibit 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated August 23, 1996 on our audits of the consolidated
financial statements of Digital Communications Technology Corporation and
Subsidiaries.
/s/ Coopers & Lybrand L.L.P.
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Coopers & Lybrand L.L.P.
Miami, Florida
August 4, 1997
Exhibit 99
AGREEMENT AND RELEASE OF ALL CLAIMS
This AGREEMENT AND RELEASE OF ALL CLAIMS (this "Agreement") is made and entered
into this 3rd day of July, 1997, by and between Hugh C. Coppen, on behalf of
himself and his heirs and personal representatives ("Coppen"), and Digital
Communications Technology Corporation, on behalf of itself, its shareholders,
directors, officers, employees, successors and assigns (the "Company").
RECITALS
A. Coppen commenced employment with the Company on or about May 6, 1996
pursuant to an employment agreement between them dated April 2, 1996 (the
"Employment Agreement").
B. The Company desires to terminate the Employment Agreement and Coppen and the
Company wish to settle and compromise all matters between them and to
forever release and discharge the other from any and all claims either may
have now or in the future against the other arising from the Employment
Agreement or as a result of Coppen's employment and termination of
employment by the Company.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the parties, the parties agree as follows:
1. The Employment Agreement is hereby terminated as of May 20, 1997 and of no
further force and effect. This Agreement constitutes the complete understanding
between the parties. No amendment or modification of this Agreement, nor other
promises or agreements between the parties on the subject matter hereof, shall
be binding or of any effect unless in writing and signed by the parties.
2. The Company agrees to issue to Coppen 136,364 shares of the Company's common
stock (the "Common Stock"). The Company shall (i) promptly prepare and file with
the Securities and Exchange Commission a registration statement on appropriate
form seeking registration of the Common Stock under the Securities the
Securities Act of 1933, as amended, (ii) use its best efforts to have such
registration statement declared effective as soon as practicable following
filing, and (iii) use its best efforts to maintain the effectiveness of such
registration statement. Within ten (10) days of the effective date of the
registration of the Common Stock, the Company shall issue to Coppen the Common
Stock in certificate form without restrictive legend.
3. The Company hereby reconfirms its grant to Coppen of an option to purchase
50,000 shares of the Company's common stock at an exercise price per share of
$2.00 (the "Options"). The Options shall be considered issued and fully vested
as of July 1, 1997 without any further action or issuance by the Company or
acknowledgement by Coppen. The Options must be exercised on or before June 30,
1998. Thereafter, the Options become null and void. Upon the death or disability
of Coppen before the expiration of the Options, the Options may be exercised by
Coppen's executor or personal representative. The Options may be exercised by
Coppen, his executor or personal representative, as the case may be, in whole or
in part, by written letter addressed to the Chairman of the Board, Digital
Communications Technology Corporation, 16910 Dallas Parkway, Suite 100, Dallas,
Texas 75248, (i) clearly expressing the desire to exercise all or a specified
number of the Options (ii) containing Coppen's then current residential address
and social security number or other federal tax identification number and (iii)
accompanied by a cashier's or certified check for a sum equal to $2.00 times the
number of Options exercised. Upon receipt of such letter and check, the Company
shall thereafter place in the mails to Coppen the share certificate for the
Options exercised within five (5) business days.
4. Coppen covenants and warrants that no proprietary information of the Company,
in documentary, electronic or other tangible form, is in his possession and,
should Coppen discover contrariwise, he shall promptly return such proprietary
information to the Company without disclosure thereof to any other person.
5. Coppen agrees that he will not, for himself or on behalf of others, solicit,
nor facilitate in any way solicitation by others seeking, the employment or
other retention of services of any employee of the Company for a period of one
(1) year from the date hereof.
6. The Company and Coppen, and any person claiming by or through either of them,
agree to release and forever discharge the other from any and all claims,
demands, losses, damages, actions or causes of action of whatever kind or nature
for or because of anything done, omitted or suffered to be done by the other
prior to and including the date hereof arising out of or in connection with
Coppen's employment or termination of employment with the Company.
7. Each party agrees to indemnify and hold harmless the other from and against
all losses, damages, costs, expenses or attorney's fees incurred by the other
arising out of the party's breach of this Agreement. Coppen further agrees that
any breach of this Agreement by him shall entitle the Company to recover, as
liquidated damages, the consideration it paid to him under this Agreement, in
addition to any costs, expenses or attorneys' fees incurred by the Company as a
result of the breach. Any statement bona fidely and reasonably believed by the
Company to have been made pursuant to its obligations as an issuer and reporting
company under the Securities Act of 1933 and the Securities Exchange Act of
1934, each as amended, cannot be and shall not be deemed a breach of this
Agreement or a breach of any legal duty or obligation of the Company otherwise
owed Coppen, whether claimed as defamation, invasion of privacy, false light or
the like, or otherwise.
8. GOVERNING LAW, VENUE AND JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS PRINCIPLES. THE PARTIES AGREE THAT
JURISDICTION AND VENUE WITH RESPECT TO ANY LAWSUIT BETWEEN THE PARTIES INVOLVING
THE INTERPRETATION, COMPLIANCE OR ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT
SHALL BE EXCLUSIVELY IN THE FEDERAL OR STATE COURTS LOCATED IN DALLAS COUNTY,
STATE OF TEXAS.
9. If any provision of this Agreement shall be determined to be illegal, invalid
or unenforceable, the illegal, invalid or unenforceable provision shall be
stricken, but the remaining provisions shall not be affected thereby.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date
first set forth above.
Digital Communications Technology Corporation
/s/ Kevin B. Halter
By: ________________________________________
Kevin B. Halter, Chairman of the Board
Hugh C. Coppen,
an Individual
/s/ Hugh C. Coppen
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