As filed with the Securities and Exchange Commission on September 21, 2007
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
COPYTELE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 11-2622630
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
900 Walt Whitman Road
Melville, New York 11747
(631) 549-5900
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
COPYTELE, INC. 2003 SHARE INCENTIVE PLAN
(Full Title of Plan)
Denis A. Krusos
Chairman of the Board and Chief Executive Officer
CopyTele, Inc.
900 Walt Whitman Road
Melville, New York 11747
(631) 549-5900
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per share 10,000,000 shares $0.925 $9,250,000 $ 283.98
======================================================================================================================
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the
Securities Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the average of the high and low sales prices of the
Registrant's Common Stock on the Over-the-Counter Bulletin Board on
September 17, 2007.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
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CopyTele, Inc. (the "Company" or "we" or "us") has prepared
this Registration Statement in accordance with the requirements of Form S-8
under the Securities Act of 1933, as amended (the "Securities Act"), to register
10,000,000 shares of our common stock, par value $.01 per share (the "Common
Stock"), issuable pursuant to our CopyTele, Inc. 2003 Share Incentive Plan, and
to file a prospectus, prepared in accordance with the requirements of Part I of
Form S-3 and, pursuant to General Instruction C of Form S-8, to be used for
reoffers and resales of Common Stock acquired by persons to be named therein
upon the exercise of options granted under our CopyTele, Inc. 2003 Share
Incentive Plan.
The documents containing the information specified in Part I
of this Registration Statement will be sent or given to plan participants as
specified by Rule 428(b)(1) of the Securities Act. Such documents are not
required to be and are not filed with the Securities and Exchange Commission
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
REOFFER PROSPECTUS
CopyTele, Inc.
Common Stock (Par Value $.01 Per Share)
10,000,000 shares of Common Stock under
the CopyTele, Inc. 2003 Share Incentive Plan
The CopyTele, Inc. 2003 Share Incentive Plan is intended to
provide incentives which will attract, retain and motivate highly competent
persons as officers, employees and directors, of, and consultants to, CopyTele,
Inc., by providing them opportunities to acquire shares of our common stock.
Additionally, the CopyTele, Inc. 2003 Share Incentive Plan is intended to assist
in further aligning the interests of our officers, employees, directors and
consultants to those of its other stockholders.
This prospectus is part of a registration statement
registering 10,000,000 shares of common stock that we may in the future issue
pursuant to our CopyTele, Inc. 2003 Share Incentive Plan in connection with the
exercise of stock options granted, and with stock or other awards made, pursuant
to that plan. The persons who are issued such stock may include our directors,
officers and/or other key employees and consultants, certain of whom may be
considered our "affiliates". Such persons may, but are not required to, sell the
shares they acquire pursuant to this prospectus. If any of such persons desires
to sell any of such stock pursuant to this prospectus, we will file with the
Securities and Exchange Commission an update to this prospectus naming such
person as a selling shareholder and indicating the number of shares such person
is offering pursuant to this prospectus. See "Selling Shareholders" on page 6 of
this prospectus. We will not receive any of the proceeds from sales by the
selling shareholders.
The selling shareholders may sell the shares from time to time
in transactions occurring either on or off the OTC Bulletin Board (or such other
market, if any, on which our common stock may be listed or quoted) at prevailing
market prices or at negotiated prices. Sales may be made through brokers or to
dealers, who are expected to receive customary commissions or discounts.
The selling shareholders and participating brokers and dealers
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933, in which event any profit on the sale of shares of those selling
shareholders and any commissions or discounts received by those brokers or
dealers may be deemed to be underwriting compensation under the Securities Act.
Our common stock is traded on the OTC Bulletin Board under the
symbol "COPY". On September 17, 2007, the closing price of our common stock as
reported by the OTC Bulletin Board was $0.92 per share.
We are paying all expenses of registration incurred in
connection with this offering but the selling shareholders will pay all
brokerage commissions and other selling expenses.
See "Risk Factors" beginning on Page 3 of this prospectus for
a discussion of certain risks and other factors that you should consider before
purchasing our common stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or
determined whether this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
The date of this prospectus is September 21, 2007
TABLE OF CONTENTS
Page
----
Where You Can Find More Information........................................ 2
The Company................................................................ 3
Risk Factors............................................................... 3
Selling Shareholders....................................................... 6
Use of Proceeds............................................................ 6
Plan of Distribution....................................................... 6
Legal Matters.............................................................. 7
Experts.................................................................... 7
You should only rely on the information incorporated by
reference or provided in this prospectus or any supplement. We have not
authorized anyone else to provide you with different information. The common
stock is not being offered in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any supplement is
accurate as of any date other than the date on the front of those documents.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy
statements and other information required by the Securities Exchange Act of
1934, as amended (the "Exchange Act"), with the Securities and Exchange
Commission ("SEC"). You may read and copy any document we file at the SEC's
public reference room located at 100 F Street N.E.., Washington, D.C. 20549.
Please call the SEC at 1-800 SEC-0330 for further information on the public
reference room. Our SEC filings are also available to the public from the SEC's
web site at: http:/www.sec.gov.
We have filed with the SEC a registration statement on Form
S-8 under the Securities Act with respect to the common stock. This prospectus,
which constitutes a part of that registration statement, does not contain all
the information contained in that registration statement and its exhibits. For
further information with respect to CopyTele and our common stock, you should
consult that registration statement and its exhibits. Statements contained in
this prospectus concerning the provisions of any documents are necessarily
summaries of those documents, and each statement is qualified in its entirety by
reference to the copy of the document filed with the SEC.
The SEC allows us to "incorporate by reference" the
information we file with them, which means that we can disclose important
information to you by referring you to the other information we have filed with
the SEC. The information that we incorporate by reference is considered to be
part of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information.
The following documents filed by us with the SEC pursuant to
Section 13 of the Exchange Act (File No. 0-11254), and any future filings under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act made prior to the
termination of the offering (except for information furnished under Item 2.02 or
7.01 of Current Report on Form 8-K, or exhibits related thereto, which is deemed
not to be incorporated by reference herein), are incorporated by reference:
(i) our Annual Report on Form 10-K for the fiscal year ended
October 31, 2006, as amended;
2
(ii) our Quarterly Reports on Form 10-Q for the quarters ended
January 31, 2007, April 30, 2007 and July 31, 2007;
(iii) our Current Report on Form 8-K, dated May 23, 2007; and
(iii) the description of our common stock contained in our
Registration Statement on Form 8-A filed with the SEC under
Section 12 of the Exchange Act on October 24, 1983, including
any amendment or report filed for the purpose of updating such
description.
We will provide without charge to each person to whom a copy
of this prospectus is delivered a copy of any or all documents incorporated by
reference into this prospectus except the exhibits to such documents (unless
such exhibits are specifically incorporated by reference in such documents).
Requests for copies can be made by writing or telephoning us at 900 Walt Whitman
Road, Melville, New York 11747, Attention: Secretary; telephone number: (631)
549-5900.
Unless otherwise stated in this prospectus, references to
"CopyTele", "we", "our" and "us" refer to CopyTele, Inc., a Delaware
corporation.
Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995
This prospectus contains "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Forward-looking statements are
not statements of historical facts, but rather reflect our current expectations
concerning future events and results. We generally use the words "believes",
"expects", "intends", "plans", "anticipates", "likely", "will", and similar
expressions to identify forward-looking statements. Such forward-looking
statements, including those concerning our expectations, involve risks,
uncertainties and other factors, some of which are beyond our control, which may
cause our actual results, performance or achievements, or industry results, to
be materially different from any future results, performance, or achievements
expressed or implied by such forward-looking statements. These risks,
uncertainties and factors include, but are not limited to, those factors more
fully described under "Risk Factors". We undertake no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise. You are cautioned not to unduly rely on
such forward-looking statements when evaluating the information presented in
this prospectus.
THE COMPANY
Our principal operations are the development, production and
marketing of thin, flat low-voltage phosphor display technology and the
development, production and marketing of multi-functional encryption products
that provide information security for domestic and international users over
virtually every communications media.
We were incorporated on November 5, 1982, under the laws of
the State of Delaware. Our principal executive offices are located at 900 Walt
Whitman Road, Melville, New York 11747, and our telephone number is (631)
549-5900.
RISK FACTORS
You should carefully consider the following factors and other
information in this prospectus before deciding to invest in our common stock. If
any of the following risks actually occur, our business and financial results
could be materially and adversely affected. In that case, the trading price of
our common stock could decline and you could lose all or part of your
investment.
3
We have experienced significant net losses and negative cash flows from
operations and they may continue.
We have had net losses and negative cash flows from operations
in each year since our inception and in the nine months ended July 31, 2007, and
we may continue to incur substantial losses and experience substantial negative
cash flows from operations. We have incurred substantial costs and expenses in
developing our encryption and flat panel display technologies and in our efforts
to produce commercially marketable products incorporating our technology. We
have had limited sales of products to support our operations from inception
through July 31, 2007. We have set forth below our net losses, research and
development expenses and net cash used in operations for the nine-month periods
ended July 31, 2007 and 2006, and for the fiscal years ended October 31, 2006
and 2005:
(Unaudited)
Nine Months Ended Fiscal Years Ended
July 31, October 31,
------------------------- -------------------------
2007 2006 2006 2005
---- ---- ---- ----
Net loss $ 4,260,851 $ 5,799,711 $ 7,600,901 $ 4,451,257
Research and development expenses $ 2,589,936 $ 3,582,867 $ 4,614,300 $ 2,266,911
Net cash used in operations $ 1,865,564 $ 1,496,300 $ 1,847,108 $ 1,720,332
We may need additional funding in the future which may not be available on
acceptable terms and, if available, may result in dilution to our stockholders,
and our auditors have issued a "going concern" audit opinion.
We anticipate that, if cash generated from operations is
insufficient to satisfy our requirements, we will require additional funding to
continue our research and development activities and market our products. The
auditor's report on our financial statements as of October 31, 2006 states that
the net loss incurred during the year ended October 31, 2006, our accumulated
deficit as of that date, and the other factors described in Note 1 to the
Financial Statements included in our Annual Report on Form 10-K for the year
ended October 31, 2006, raise substantial doubt about our ability to continue as
a going concern. The auditor's report on our financial statements for the years
ended October 31, 2005 and 2004 contained a similar statement. Our financial
statements have been prepared assuming we will continue as a going concern and
do not include any adjustments that might result from the outcome of this
uncertainty.
We believe that our existing cash and accounts receivable,
together with cash flows from expected sales of encryption products and flat
panel displays, and other potential sources of cash flows, will be sufficient to
enable us to continue in operation until at least the end of the third quarter
of fiscal 2008. We anticipate that, thereafter, we will require additional funds
to continue marketing, production, and research and development activities, and
we will require outside funding if cash generated from operations is
insufficient to satisfy our liquidity requirements. However, our projections of
future cash needs and cash flows may differ from actual results. If current cash
and cash that may be generated from operations are insufficient to satisfy our
liquidity requirements, we may seek to sell debt or equity securities or to
obtain a line of credit prior to the third quarter of fiscal 2008. The sale of
additional equity securities or convertible debt could result in dilution to our
stockholders. We can give no assurance that we will be able to generate adequate
funds from operations, that funds will be available to us from debt or equity
financings or that, if available; we will be able to obtain such funds on
favorable terms and conditions. We currently have no arrangements with respect
to additional financing. If we cannot obtain such funds if needed, we would need
to curtail or cease some or all of our operations.
4
We may not generate sufficient revenues to support our operations in the future
or to generate profits.
Our principal operations are the development, production and
marketing of thin, flat low-voltage phosphor display technology and the
development, production and marketing of multi-functional encryption products
that provide information security for domestic and international users over
virtually every communications media. We have only recently started to produce
color and monochrome versions of our display and to date, we have not had any
revenue from sales or licensing of our display. Our encryption products are only
in their initial stages of commercial production. Our investments in research
and development are considerable. Our ability to generate sufficient revenues to
support our operations in the future or to generate profits will depend upon
numerous factors, many of which are beyond our control, including:
o Our ability to successfully market our display technology and
encryption products.
o The capability of Volga Svet Ltd ("Volga"), a Russian display company
that we have been working with for ten years, to produce color and
monochrome displays and supply them to us.
o Our ability to enter into arrangements with other companies to produce
and market our displays.
o Our production capabilities and those of our suppliers as required for
the production of our encryption products.
o Long-term performance of our products.
o The capability of our dealers and distributors to adequately service
our encryption products.
o Our ability to maintain an acceptable pricing level to end-users for
both our encryption and display products.
o The ability of suppliers to meet our requirements and schedule.
o Our ability to successfully develop other new products under
development.
o Rapidly changing consumer preferences.
o The possible development of competitive products that could render our
products obsolete or unmarketable.
o Our future negotiations with Volga with respect to payments and other
arrangements under our Joint Cooperation Agreement with Volga.
Because our revenue is subject to fluctuation, we may be
unable to reduce operating expenses quickly enough to offset any unexpected
revenue shortfall. If we have a shortfall in revenue in relation to expenses,
our operating results would suffer. Our operating results for any particular
fiscal year or fiscal quarter may not be indicative of future operating results.
You should not rely on year-to-year or quarter-to-quarter comparisons of results
of operations as an indication of our future performance.
We are dependent upon a few key executives and the loss of their services could
adversely affect us.
Our future success is dependent on our ability to hire, retain
and motivate highly qualified personnel. In particular, our success depends on
the continued efforts of our Chief Executive Officer, Denis A. Krusos, and our
President, Frank J. DiSanto, who founded our company in 1982 and are engaged in
the management and operations of our business, including all aspects of the
development, production and marketing of our encryption products and flat panel
display technology. In addition, Messrs. Krusos and DiSanto, as well as our
other skilled management and technical personnel, are important to our future
business and financial arrangements. We do not have employment agreements with,
5
nor do we maintain "key person" life insurance on, either Mr. Krusos or Mr.
DiSanto. The loss of the services of any such persons could have a material
adverse effect on our business and operating results.
The very competitive markets for our encryption products and flat panel display
technology could have a harmful effect on our business and operating results.
The markets for our encryption products and flat panel display
technology worldwide are highly competitive and subject to rapid technological
changes. Most of our competitors are larger than us and possess financial,
research, service support, marketing, manufacturing and other resources
significantly greater than ours. Competitive pressures may have a harmful effect
on our business and operating results.
Our common stock is subject to the SEC's penny stock rules which may make our
shares more difficult to sell.
Our stock fits the definition of a penny stock. The SEC rules
regarding penny stocks may have the effect of reducing trading activity in our
common stock and making it more difficult for investors to sell their shares.
The rules require a broker to deliver a risk disclosure document that provides
information about penny stocks and the nature and level of risks in the penny
stock market. The broker must also give bid and offer quotations and broker and
salesperson compensation information to the customer orally or in writing prior
to effecting a transaction and in writing with the confirmation. The SEC rules
also require a broker to make a special written determination that the penny
stock is a suitable investment for the purchaser and receive the purchaser's
written agreement to the transaction before completion of the transaction. These
requirements may result in a lower trading volume of our common stock and lower
trading prices.
SELLING SHAREHOLDERS
This prospectus is part of a registration statement
registering 10,000,000 shares of common stock that we may in the future issue
pursuant to our CopyTele, Inc. 2003 Share Incentive Plan in connection with the
exercise of stock options granted, and with stock or other awards made, pursuant
to that plan. The persons who are issued such stock may include our directors,
officers and/or other key employees and consultants, certain of whom may be
considered our "affiliates". Such persons may, but are not required to, sell the
shares they acquire pursuant to this prospectus. If any of such persons desires
to sell any of such stock pursuant to this prospectus, we will update this
prospectus by filing with the SEC a supplement to this prospectus in accordance
with Rule 424(b) under the Securities Act of 1933, as amended, or a
post-effective amendment to the registration statement of which this prospectus
is part, naming such person as a selling shareholder and indicating the number
of shares such person is offering pursuant to this prospectus. Any selling
shareholder might or might not receive or sell all or any of the shares
registered under the registration statement of which this prospectus is part.
USE OF PROCEEDS
Shares covered by this prospectus will be sold by the selling
shareholders as principals for their own account. We will not receive any
proceeds from sales of any shares by selling shareholders.
PLAN OF DISTRIBUTION
The selling shareholders, or pledges, donees, or transferees
of or successors in interest to the selling shareholders, may sell shares
pursuant to this prospectus from time to time in transactions (including one or
more block transactions) on the OTC Bulletin Board (or such other market, if
6
any, on which our common stock may be listed or quoted), in the public market
off the OTC Bulletin Board, in privately negotiated transactions, or in a
combination of such transactions. Each sale may be made either at the market
price prevailing at the time of sale or at a negotiated price. Sales may be made
through brokers or to dealers, and such brokers or dealers may receive
compensation in the form of commissions or discounts not exceeding those
customary in similar transactions. Any shares covered by this prospectus that
qualify for sale under Rule 144 under the Securities Act may be sold under Rule
144 rather than under this prospectus. We are paying all expenses of
registration incurred in connection with this offering, but the selling
shareholders will pay their own brokerage commissions and any other expenses
they incur.
The selling shareholders and any dealers acting in connection
with the offering or any brokers executing sell orders on behalf of a selling
shareholder may be deemed to be "underwriters" within the meaning of the
Securities Act, in which event any profit on the sale of shares by a selling
shareholder and any commissions or discounts received by a broker or dealer may
be deemed to be underwriting compensation under the Securities Act. In addition,
a broker or dealer may be required to deliver a copy of this prospectus to any
person who purchases any of the shares from or through the broker or dealer.
LEGAL MATTERS
Certain legal matters with respect to the Common Stock offered
hereby will be passed upon by Duane Morris LLP, our legal counsel.
EXPERTS
The financial statements and schedule, and management's
assessment of the effectiveness of internal control over financial reporting, of
CopyTele, Inc. incorporated by reference in this prospectus from our Annual
Report on Form 10-K for the year ended October 31, 2006 have been audited by
Grant Thornton LLP, independent registered public accounting firm, as indicated
in their reports with respect thereto, and are incorporated by reference in
reliance upon the authority of said firm as experts in accounting and auditing.
The audit report of Grant Thornton LLP covering the financial statements and
schedule, which expresses an unqualified opinion, contains an explanatory
paragraph that states that CopyTele, Inc. incurred a net loss during the year
ended October 31, 2006, and, as of that date, has an accumulated deficit, and
among other factors raise substantial doubt about its ability to continue as a
going concern. The financial statements and schedule do not include any
adjustment that might result from the outcome of this uncertainty.
7
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
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The following documents filed with the Securities and Exchange
Commission by the Company are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the
fiscal year ended October 31, 2006; and
(2) the Company's Quarterly Reports on Form 10-Q for
the quarters ended January 31, 2007, April 30, 2007
and July 31, 2007;
(3) the Company's Current Report on Form 8-K, dated May
23, 2007; and
(4) the description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed
with the Commission pursuant to Section 12 of the
Securities Exchange Act of 1934 on October 24, 1983,
including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,
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 such
documents.
Item 4. Description of Securities.
------ -------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
------ -------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
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Generally, Section 145 of the General Corporation Law of the State of
Delaware permits a corporation to indemnify certain persons made a party to an
action, by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise. In the case of an action by or in the right of the corporation, no
indemnification may be made in respect of any matter as to which that person was
adjudged liable for negligence or misconduct in the performance of that person's
duty to the corporation unless the Delaware Court of Chancery or the court in
which the action was brought determines that despite the adjudication of
liability that person is fairly and reasonably entitled to indemnity for proper
expenses. To the extent that person has been successful in the defense of any
matter, that person shall be indemnified against expenses actually and
reasonably incurred by him.
II-1
Article XIII of the By-Laws of the Company contain provisions which are
designed to provide mandatory indemnification of directors and officers of the
Company to the full extent permitted by law, as now in effect or later amended.
The Company's By-Laws, as amended and restated, are filed as an Exhibit to this
Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
as disclosed above, the Company has been informed 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.
Item 7. Exemption from Registration Claimed.
------ -----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
----------- -----------
4(a) - Certificate of Incorporation of the
Company, as amended, filed as Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended July 31, 1992
(incorporated by reference).
4(b) - By-Laws of the Company, as amended and
restated, filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the
year ended October 31, 2006 (incorporated by
reference).
4(c) - CopyTele, Inc. 2003 Share Incentive Plan,
filed as Exhibit 4(d) to the Company's
Registration Statement on Form S-8,
Registration No. 333-105012 (incorporated by
reference).
4(d) - Amendment No. 1 to the CopyTele, Inc. 2003
Share Incentive Plan, filed as Exhibit 4(e)
to the Company's Registration Statement on
Form S-8, Registration No. 333-120333
(incorporated by reference).
4(e) - Amendment No. 2 to the CopyTele, Inc. 2003
Share Incentive Plan, filed as Exhibit 10.1
to the Company's Quarterly Report on Form
10-Q for the quarter ended January 31, 2006
(incorporated by reference).
4(f) - Amendment No. 3 to the CopyTele, Inc. 2003
Share Incentive Plan, filed as Exhibit 10.2
to the Company's Quarterly Report on Form
10-Q for the quarter ended January 31, 2006
(incorporated by reference).
4(g) - Amendment No. 4 to the CopyTele, Inc. 2003
Share Incentive Plan (filed herewith).
5 - Opinion and consent of Duane Morris LLP
(filed herewith).
23(a) - Consent of Grant Thornton LLP (filed herewith).
23(b) - Consent of Duane Morris LLP (included in
Exhibit 5).
24 - Powers of Attorney (included on signature page).
II-2
Item 9. Undertakings.
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(a) 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. 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) 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) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in 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 a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(5) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and included in
the registration statement; and
(B) Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made pursuant to Rule
II-3
415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be
part of and included in the registration statement as of the earlier of the date
such form of prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be
a new effective date of the registration statement relating to the securities in
the registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(ii) If the registrant is subject to Rule 430C, each
prospectus filed pursuant to Rule 424(b) as part of a registration statement
relating to an offering, other than registration statements relying on Rule 430B
or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be
part of and included in the registration statement as of the date it is first
used after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such first use,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such date of first use
(6) That, for the purpose of determining liability of the
registrant under the Securities Act to any purchaser in the initial distribution
of the securities: The registrant undertakes that in a primary offering of
securities of the registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the
registrant relating to the offering required to be filed pursuant to Rule 424
pursuant to the Securities Act;
(ii) any free writing prospectus relating to the
offering prepared by or on behalf of the registrant or used or referred to by
the registrant;
(iii) the portion of any other free writing prospectus
relating to the offering containing material information about the registrant or
its securities provided by or on behalf of the registrant; and
(iv) any other communication that is an offer in the
offering made by the registrant to the purchaser.
(b) 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 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.
II-4
(c) 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.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 at Melville, State of New York, on this 21st day of September,
2007.
CopyTele, Inc.
By: /s/ Denis A.Krusos
------------------
Denis A. Krusos
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of Denis A. Krusos and
Frank J. DiSanto acting individually, 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
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 and 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, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Denis A.Krusos Chairman of the Board, September 21, 2007
- ------------------ Chief Executive Officer
Denis A. Krusos and Director (Principal
Executive Officer)
/s/ Frank J. Disanto President and Director September 21, 2007
- ---------------------
Frank J. DiSanto
/s/ Henry P. Herms Vice President-Finance, Chief September 21, 2007
- ------------------ Financial Officer and Director
Henry P. Herms (Principal Financial and
Accounting Officer)
/s/ George P. Larounis Director September 21, 2007
- ----------------------
George P. Larounis
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4(a) - Certificate of Incorporation of the
Company, as amended, filed as Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended July 31, 1992
(incorporated by reference).
4(b) - By-Laws of the Company, as amended and
restated, filed as Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the
year ended October 31, 2005 (incorporated by
reference).
4(c) - CopyTele, Inc. 2003 Share Incentive Plan,
filed as Exhibit 4(d) to the Company's
Registration Statement on Form S-8,
Registration No. 333-105012 (incorporated by
reference).
4(d) - Amendment No. 1 to the CopyTele, Inc. 2003
Share Incentive Plan, filed as Exhibit 4(e)
to the Company's Registration Statement on
Form S-8, Registration No. 333-120333
(incorporated by reference).
4(e) - Amendment No. 2 to the CopyTele, Inc. 2003
Share Incentive Plan, filed as Exhibit 10.1
to the Company's Quarterly Report on Form
10-Q for the quarter ended January 31, 2006
(incorporated by reference).
4(f) - Amendment No. 3 to the CopyTele, Inc. 2003
Share Incentive Plan, filed as Exhibit 10.2
to the Company's Quarterly Report on Form
10-Q for the quarter ended January 31, 2006
(incorporated by reference).
4(g) - Amendment No. 4 to the CopyTele, Inc. 2003
Share Incentive Plan (filed herewith).
5 - Opinion and consent of Duane Morris LLP
(filed herewith).
23(a) - Consent of Grant Thornton LLP (filed herewith).
23(b) - Consent of Duane Morris LLP (included in
Exhibit 5).
24 - Powers of Attorney (included on signature page).