As filed with the Securities and Exchange Commission on September __, 1999
Commission File No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
C-PHONE CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 06-1170506
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6714 NETHERLANDS DRIVE, WILMINGTON, NORTH CAROLINA 28405
(Address, including zip code of registrant's principal executive offices)
C-PHONE CORPORATION
AMENDED AND RESTATED
1994 STOCK OPTION PLAN
(Full title of the plan)
DANIEL P. FLOHR
PRESIDENT AND CHIEF EXECUTIVE OFFICER
C-PHONE CORPORATION.
6714 NETHERLANDS DRIVE
WILMINGTON, NORTH CAROLINA 28405
(910) 395-6100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications, including all communications sent to
the agent for service, should be sent to
WARSHAW BURSTEIN COHEN SCHLESINGER & KUH, LLP
555 FIFTH AVENUE
NEW YORK, NEW YORK 10017
(212) 984-7700
ATTENTION: MICHAEL D. SCHWAMM, ESQ.
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of each class of Amount to be offering aggregate offering Amount of
securities to be registered registered price per share(2) price(2) registration fee
- --------------------------- ---------- ------------------ -------- ----------------
Common Stock, $.01 par 375,000 shares(1) $1.234 $462,881 $129
value per share
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(1) Consists of shares issuable upon exercise of options granted and to be
granted pursuant to the C-Phone Corporation Amended and Restated 1994 Stock
Option Plan, subject to adjustment for antidilution as provided therein.
(2) Pursuant to Rule 457(h)(1), the proposed maximum offering price and the
proposed maximum aggregate offering price have been calculated on the basis
of the average high and low sales prices of C-Phone Corporation's common
stock, as reported by the Nasdaq National Market on September 24, 1999.
EXPLANATORY NOTE
The amount being registered hereunder represents an addition to the
500,000 shares of Common Stock of C-Phone Corporation issuable under the C-Phone
Corporation Amended and Restated 1994 Option Plan pursuant to the Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on
August 1, 1995 (registration no. 33-95306), which registration statement is
incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by C-Phone Corporation
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act are incorporated by reference into this registration statement:
(a) C-Phone's Annual Report on Form 10-KSB for the fiscal year
ended February 28, 1999.
(b) C-Phone's Quarterly Report on Form 10-QSB for the fiscal
quarter ended May 31, 1999.
(c) The description of the C-Phone's common stock set forth under
Item 1 of its registration statement on Form 8-A, as filed
with the Commission on June 22, 1994, which incorporates by
reference the description set forth in the prospectus, dated
August 19, 1994, contained in its registration statement on
Form S-1 (File No. 33-80280), under the caption "Description
of Securities - Common Stock."
All documents subsequently filed by C-Phone with the Commission after
the date of this registration statement pursuant to Sections 13(a), 13(c), 14,
and 15(d) of the Exchange Act and prior to the filing of a post-effective
amendment to this registration statement, which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this registration
statement and to be part hereof from the date of filing such documents;
PROVIDED, HOWEVER, that the documents enumerated above or subsequently filed by
C-Phone pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in
each year during which the offering made by this registration statement is in
effect and prior to the filing with the Commission of C-Phone's Annual Report on
Form 10-KSB covering such year, shall not be deemed to be incorporated by
reference in this registration statement or be a part hereof from and after the
filing of that Annual Report on Form 10-KSB.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
contained herein, or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement contained in this registration statement contained in a
subsequently filed document, which is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
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.
As permitted by Section 722 of the New York Business Corporation Law
(the "BCL"), Article SIXTH of C-Phone's Restated Certificate of Incorporation
provides that:
"To the fullest extent now or hereafter provided for or permitted by
law, the Corporation shall indemnify the directors and officers of the
Corporation and, in connection therewith, advance expenses with respect
thereto. The rights to indemnification and advancement of expenses
granted hereby shall not limit or exclude, but shall be in addition to,
any other rights which may be granted by or pursuant to any by-law,
resolution or agreement permitted by law; shall be deemed to constitute
a contractual obligation of the Corporation to any director or officer
of the Corporation who serves in such a capacity at any time while such
rights are in effect; shall continue to exist after the repeal or
modification hereof, to the extent permitted by law, with respect to
events occurring prior thereto; and shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit
of the estate, spouse, heirs, executors, administrators or assigns of
such person."
In addition, Section 8.1 of C-Phone's By-Laws provides that:
"The Corporation shall, to the fullest extent now or hereafter
permitted by the New York Business Corporation Law, indemnify any
Director or officer who is or was made, or threatened to be made, a
party to an action, suit or proceeding including, without limitation,
an action by or in the right of the Corporation to procure a judgment
in its favor, whether civil or criminal, whether involving any actual
or alleged breach of duty, neglect or error, any accountability, or any
actual or alleged misstatement, misleading statement or other act or
omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or
in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit
plan or other enterprise, which any Director or officer of the
Corporation is serving or served in any capacity at the request of the
Corporation, by reason of the fact that he, his testator or intestate,
is or was a Director or officer of the Corporation, or is serving or
served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorneys' fees, actually and necessarily incurred
in connection with the defense of such action, suit or proceeding or
any appeal therein; provided, however, that no indemnification shall be
provided to any such Director or officer if a judgment or other final
adjudication adverse to the Director or officer establishes that (i)
his acts were committed in bad faith or were the result of active and
deliberate dishonesty and, in either case, were material to the cause
of action so adjudicated, or (ii) he personally gained in fact a
financial profit or other advantage to which he was not legally
entitled. Such right of indemnification shall not be deemed exclusive
of any other rights to which such Director or officer may be entitled
apart from the foregoing provisions. The foregoing provisions of this
Section 8.1 shall be deemed to be a contract between the Corporation
and each Director and officer who serves in such capacity at any time
while this Article 8 and the relevant provisions of the New York
Business Corporation Law and other applicable law, if any, are in
effect, and any repeal or modification thereof shall not affect any
rights or obligations then existing with respect to any state of facts
then or theretofore existing or any action, suit or proceeding
theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts."
The BCL, among other things, permits C-Phone to indemnify any person
who was or is a party to any action by reason of the fact that such person is or
was or has agreed to become a director or officer of C-Phone, or is or was
serving at the request of C-Phone as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise against any
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liability incurred by him or her in connection with such action, if such person
acted in good faith and in a manner such person reasonably believed to be in, or
not opposed to, the best interests of C-Phone, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably believed to be
in, or not opposed to, the best interest of C-Phone and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
As permitted by Section 402(b) of the BCL, Article SEVENTH of C-Phone's
Restated Certificate of Incorporation provides that:
"To the fullest extent now or hereafter provided for or permitted by
law, directors of the Corporation shall not be liable to the
Corporation or its shareholders for damages for any breach of duty in
their capacity as directors. Any repeal or modification hereof shall
not adversely affect any right or protection of a director of the
Corporation existing hereunder with respect to any act or omission
occurring prior to such repeal or modification."
Section 402(b) of the BCL permits a corporation to eliminate or limit
the personal liability of its directors to its shareholders and the corporation
for damages for any breach of duty in such capacity.
The BCL, among other things, provides that the foregoing provisions of
C-Phone's Restated Certificate of Incorporation and By-Laws do not limit the
liability of any director if a judgment or other final adjudication adverse to
him or her establishes that his or her acts were in bad faith or involved
intentional misconduct or a knowing violation of law or he or she gained in fact
a financial profit or other advantage to which he or she was not legally
entitled or that his or her acts violated the BCL.
C-Phone also has obtained directors and officers liability insurance
which covers the expenses incurred (subject to a deductible amount) in defending
against a claim for breach of duty of a director or officer to the extent that
such claim is also subject to a right of indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
4 Instruments defining the rights of security holders, including
indentures
4.1 Restated Certificate of Incorporation, as filed with the
Secretary of State of the State of New York on February
24, 1994(1)
4.2 Certificate of Amendment to Certificate of Incorporation,
as filed with the Secretary of State of the State of New
York on August 9, 1996(2)
4.3 Certificate of Amendment to Certificate of Incorporation,
as filed with the Secretary of State of the State of New
York on August 12, 1997(3)
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4.4 Certificate of Amendment to Certificate of Incorporation,
as filed with the Secretary of State of the State of New
York on December 18, 1997(4)
4.5 By-laws, as currently in effect(1)
4.6 Form of certificate representing shares of the C-Phone
Corporation common stock(5)
4.7 C-Phone Corporation Amended and Restated 1994 Stock Option
Plan and Form of Option Agreement.*
5 Opinion re legality
5.1 Opinion of Warshaw Burstein Cohen Schlesinger & Kuh, LLP*
15 Letter on unaudited interim financial information - not applicable
23 Consent of experts and counsel
23.1 Consent of Warshaw Burstein Cohen Schlesinger & Kuh, LLP
(contained in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP*
24 Power of attorney (contained in the signature pages hereto)
28 Information from reports furnished to state insurance regulatory
authorities not applicable.
99 Additional exhibits - not applicable
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*Filed herewith
(1) Incorporated by reference to an Exhibit filed as part of the Company's
Registration Statement on Form S-1 (the "S-1 Registration Statement")
(Registration No. 33-80280), filed on June 14, 1994.
(2) Incorporated by reference to an Exhibit filed as part of the Company's
Quarterly Report on Form 10-QSB for the fiscal quarter ended August 30,
1996.
(3) Incorporated by reference to an Exhibit filed as part of the Company's
Quarterly Report on Form 10-QSB for the fiscal quarter ended August 30,
1997.
(4) Incorporated by reference to an Exhibit filed as part of the Company's
Current Report on Form 8-K, dated December 31, 1997.
(5) Incorporated by reference to an Exhibit filed as part of Amendment No. 2 to
the Company's Registration Statement on Form S-1 (Registration No.
33-80280), filed on August 11, 1994.
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ITEM 9. UNDERTAKINGS.
C-Phone undertakes that it will:
(1) 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;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information 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.
(iii) Include any additional or changed material
information on the plan of distribution.
PROVIDED, HOWEVER, that C-Phone does not need to give the statements in
paragraph (1)(i) and (1)(ii) if the information required in a
post-effective amendment is incorporated by reference from periodic
reports filed by C-Phone under the Exchange Act.
(2) For determining liability under the Securities Act, 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of C-Phone pursuant to the foregoing provisions, or otherwise, C-Phone
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.
If a claim for indemnification against such liabilities (other than the
payment by C-Phone of expenses incurred or paid by a director, officer or
controlling person of C-Phone 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, C-Phone 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 Wilmington, State of North Carolina, on September 27,
1999.
C-PHONE CORPORATION
By /s/ DANIEL P. FLOHR
-----------------------------------------
Daniel P. Flohr
President and Chief Executive Officer
Each person whose signature appears below hereby constitutes and
appoints Daniel P. Flohr, Tina L. Jacobs and Paul H. Albritton, and each of
them, his or her true and lawful attorney-in-fact, with full power of
substitution and resubstitution, for him or her 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 other documents in connection therewith, with the
Securities and Exchange Commission under the Securities Act of 1933, hereby
ratifying and confirming all that such attorneys-in-fact 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 below by the following persons in the
capacities indicated and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ DANIEL P. FLOHR President, Chief Executive Officer September 27, 1999
- ------------------------- and Director (Principal Executive Officer)
Daniel P. Flohr
/s/ SEYMOUR L. GARTENBERG Director September 27, 1999
- -------------------------
Seymour L. Gartenberg
/s/ TINA L. JACOBS Director September 27, 1999
- -------------------------
Tina L. Jacobs
/s/ DONALD S. MCCOY Director September 27. 1999
- -------------------------
Donald McCoy
/s/ E. HENRY MIZE Director September 27, 1999
- -------------------------
E. Henry Mize
/s/ STUART E. ROSS Director September 27, 1999
- -------------------------
Stuart E. Ross
/s/ PAUL H. ALBRITTON Vice President and Chief Financial September 27, 1999
- ------------------------- Officer (Principal Financial and
Paul H. Albritton Accounting Officer)
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