FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 2002
REGISTRATION NO. 333-
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
- ---------------------------- --------------------- -------------------
(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)
Capsule Communications, Inc. 2001 Stock Option Plan
Capsule Communications 1999 Stock Option Plan
Capsule Communications, Inc. 1996 Stock Option Plan
(Full Title of the Plans)
A. John Leach, Jr.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COVISTA COMMUNICATIONS, INC.
150 Clove Road, Little Falls, New Jersey 07424
(973) 812-1100
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent For Service)
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Title of Each Class Amount to Proposed Maximum Proposed Maximum Amount of
of Securities be Regis- Offering Price Aggregate Offer- Registration
to be Registered tered (1) Per Share (2) ing Price (2) Fee
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Capsule Communications, 46,000 shares(1) $6.61 $304,060.00 $27.98
Inc. 2001 Stock Option
Plan
Common Stock, $.05 par value
Capsule Communications, 92,000 shares(1) $6.61 $608,120.00 $55.95
Inc. 1999 Stock Option
Plan
Common Stock, $.05 par value
Capsule Communications, 321,000 shares(1) $6.61 $2,121,810.00 $195.21
Inc. 1996 Stock Option
Plan
Common Stock, $.05 par value
- -------------------------------------------------------------------------------------------------
(1) This Registration Statement also shall cover any additional
shares of the Registrant's Common Stock that become issuable
under the 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
average of the high and low trading prices for the Registrant's
Common Stock on February 8, 2002, as reported by the Nasdaq
National Market.
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, July 31, 2001 and October 31, 2001;
(iii) Current Report on Form 8-K filed on July 19, 2001; and
(iv) The description of the Registrant's common stock, par value $.05
per share, contained in Pre-Effective Amendment No. 3 to the
Registrant's Registration Statement on Form S-4 (No. 333-69644)
filed by the Registrant with the Commission on January 8, 2002.
All reports and documents filed by the Registrant pursuant to Sections
13(a), 14 or 15(d) of the Securities Exchange Act of 1934, after the date
hereof and prior to the filing a post effective amendment to this
Registration Statement indicating that all securities offered hereby have been
sold or deregistering all such securities then remaining unsold, shall also be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof, commencing on the respective dates on which such reports and
documents are filed with the Commission. Any statement incorporated by
reference herein shall also be deemed to be modified or superseded for the
purposes of this Registration Statement and any amendment or supplement hereto
to the extent that another 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
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute part of this Registration Statement or any amendment
or supplement hereto.
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.
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 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.
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. 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 generally obligates the Registrant to indemnify such persons to
the maximum extent permitted by New Jersey law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
II-2
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, Esq. (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 2001 Stock Option Plan of Capsule Communications, Inc.
Filed herewith.
99.2 1999 Stock Option Plan of Capsule Communications, Inc.
Filed herewith.
99.3 1996 Stock Option Plan of Capsule Communications, Inc.
Filed herewith.
99.4 Form of Option Assumption Agreement. Filed herewith.
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:
(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
II-3
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.
II-4
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 Chattanooga,
Tennessee, on February 12, 2002.
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 February
12, 2002 in the capacities indicated.
Name Title
/s/ A. John Leach, Jr.
- ------------------------------ President and Chief Executive Officer
A. John Leach, Jr. and Director
(Principal Executive Officer)
/s/ Thomas P. Gunning
- ------------------------------- Vice President, Treasurer, Secretary,
Thomas P. Gunning 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
/s/ Kevin Alward
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Kevin Alward Chief Operating Officer and Director
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Walt Anderson Director
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Leon Genet Director
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Donald Jones Director
/s/ Nicholas Merrick
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Nicholas Merrick Director
/s/ Jay J. Miller
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Jay J. Miller Director