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As filed with the Securities and Exchange Commission on September 9_, 1996
Registration No. 333-____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CELLULARVISION USA, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3853788
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
505 Park Avenue
New York, New York 10022
(Address of principal executive offices)
CellularVision USA, Inc.
1995 Stock Incentive Plan
(Full title of the plan)
Shant S. Hovnanian
President and Chief Executive Officer
CellularVision USA, Inc.
505 Park Avenue
New York, New York 10022
(212) 751-0900
--------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
Title of securities Proposed maximum Proposed maximum Amount of
to be registered Amount to be offering price per aggregate offering registration fee
registered(1) share (2) price (2)
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 1,250,000 $10.25 $12,812,500 $4,418.10
</TABLE>
- ------------------------
(1) This Registration Statement covers 1,250,000 shares authorized to be sold
under the CellularVision USA, Inc. 1995 Stock Incentive Plan (the "Plan").
(2) Estimated solely for calculating the amount of the registration fee,
pursuant to Rule 457(h) under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission (the "Commission") by CellularVision USA, Inc., a Delaware
corporation (the "Company"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act");
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996 (as amended by Form 10-Q/A filed on July 9,
1996) and June 30, 1996, filed pursuant to the Exchange Act; and
(c) The description of the common stock of the Company, $.01 par
value per share (the "Common Stock") incorporated by reference into
the Company's Registration Statement on Form 8-A, filed on January
19, 1996 pursuant to the Exchange Act, contained in the Company's
Registration Statement on Form S-1, filed on October 18, 1995
pursuant to the Securities Act of 1933 (the "Securities Act"), as
amended by Amendment No. 1, Amendment No. 2 and Amendment No. 3,
filed on December 1, 1995, January 16, 1996 and February 5, 1996,
respectively, pursuant to the Securities Act.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered
hereby have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of the filing of such documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. In its Certificate of
Incorporation, the Company has adopted the provisions of Section 102(b)(7) of
the Delaware law, which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for monetary damages for breach of the director's
fiduciary duty, except (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the Delaware Law (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
The Company has also adopted indemnification provisions
pursuant to Section 145 of the Delaware Law, which provides that a corporation
may indemnify any persons, including officers and directors, who are, or are
threatened to be made, parties to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that such person was an officer, director, employee or
agent of the corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such officer, director, employee or agent acted in good faith and in
a manner he reasonably believed to be in or not opposed to the corporation's
best interest and, with respect to criminal proceedings, had no reasonable
cause to believe that his conduct was unlawful. A Delaware corporation may
indemnify officers or directors in an action by or in the right of the
corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to
be liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against expenses (including attorneys' fees)
that such officer or director actually and reasonably incurred.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
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Item 8. EXHIBITS
Exhibit No.
4.1 Copy of the Company's Certificate of Incorporation
(incorporated by reference to the Company's Registration
Statement on Form S-1, Registration No. 33-98340, filed on
October 18, 1995 pursuant to the Securities Act (the "S-1
Registration Statement"), Exhibit 3.1).
4.2 Copy of the Company's By-Laws (incorporated by reference to
Amendment No. 2 to the S-1 Registration Statement, filed on
January 16, 1996 pursuant to the Securities Act, Exhibit
3.2).
5 Opinion of Willkie Farr & Gallagher.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit
5).
24 Powers of Attorney (reference is made to the signature page
herein)
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are
being made, a post-effective amendment to the Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(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 (a)(i) and (a)(ii) do not apply if the
information required to be included in a
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post-effective amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability
under the Securities Act, 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.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act 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.
3. 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 Exchange Act;
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 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.
4. 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 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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
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policy as expressed in the Securities 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, the Company
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 New York, State of New York, on the 31st day of
July, 1996.
CELLULARVISION USA, INC.
By:/s/ Shant S. Hovnanian
Shant S. Hovnanian
President and
Chief Executive Officer
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Each of the undersigned officers and directors of the Company hereby
severally constitutes and appoints Shant S. Hovnanian and Dan Reiss and each
of them, their true and lawful attorneys-in-fact for the undersigned, in any
and all capacities, each with full power of substitution, to sign any and all
amendments to this Registration Statement (including post-effective
amendments), and to file the same with exhibits thereto and other documents in
connection therewith, with the Commission, granting unto said
attorneys-in-fact, and each of them, 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 each said
attorney-in-fact, or any of them, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Shant S. Hovnanian Chairman of the Board, President and Chief July 31, 1996
Shant S. Hovnanian Executive Officer
/s/ Erik Kruger Principal Financial Officer and Principal July 31, 1996
Erik Kruger Accounting Officer
/s/ Bernard B. Bossard Executive Vice President, Chief Technical Officer July 31, 1996
Bernard B. Bossard and Director
/s/ Vahak S. Hovnanian Director July 31, 1996
July 31, 1996 Vahak S. Hovnanian
_______________________ Director
William E. James
/s/ Bruce G. McNeill Director July 31, 1996
Bruce G. McNeill
/s/ Roy H. March Director July 31, 1996
Roy H. March
/s/ Matthew J. Rinaldo Director July 31, 1996
Matthew J. Rinaldo
/s/ Peter Alan Rinfret Director July 31, 1996
Peter Alan Rinfret
/s/ Dennis G. Spickler Director July 31, 1996
Dennis G. Spickler
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit No.
5 Opinion of Willkie Farr & Gallagher,
counsel to the Company.
23.1 Consent of Coopers & Lybrand LLP.
23.2 Consent of Willkie Farr & Gallagher
(contained in Exhibit 5).
<PAGE>
EXHIBIT 5
OPINION OF WILLKIE FARR & GALLAGHER
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Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
September 6, 1996
CellularVision USA, Inc.
505 Park Avenue
New York, New York 10022
Re: Registration Statement on Form S-8
Dear Sirs:
We have acted as counsel for CellularVision USA, Inc., a Delaware corporation
(the "Company"), in connection with the registration pursuant to the
Securities Act of 1933, as amended (the "Act"), of 1,250,000 shares of common
stock, par value $.01 per share, of the Company (the "Common Stock") to be
issued pursuant to the terms of the Company's 1995 Stock Incentive Plan (the
"Plan").
In connection therewith, we have participated in the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
the Common Stock to be filed with the Securities and Exchange Commission on or
about September 6, 1996, and we are familiar with the corporate proceedings
taken to date in connection with the authorization and issuance of the Common
Stock.
As counsel for the Company, we have examined, among other things, such federal
and state laws and originals and/or copies (certified or otherwise identified
to our satisfaction) of such documents, certificates and records as we deemed
necessary and appropriate for the purpose of preparing this opinion.
Based on the foregoing and assuming that the Common Stock will be issued and
sold pursuant to the terms of the Plan, we are of the opinion that the shares
of Common Stock to be sold by the Company, pursuant to the Registration
Statement have been duly authorized by all requisite corporate action and,
upon issuance, delivery and payment therefor, will be validly issued, fully
paid and nonassessable.
No person or entity other than you may rely or claim reliance upon this
opinion. This opinion is limited to the
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matters stated herein and no opinion is implied or may be inferred beyond the
matters expressly stated. We call to your attention that we are not admitted
to practice, do not purport to be experts in the laws of, and, accordingly, do
not express an opinion as to matters arising under the laws of any
jurisdiction, other than the laws of the State of New York, the Delaware
General Corporation Law and the Federal laws of the United States.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Willkie Farr & Gallagher
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EXHIBIT 23.1
CONSENT OF COOPERS & LYBRAND LLP
<PAGE>
COOPERS & LYBRAND LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of CELLULARVISION USA, INC. on Form S-8 (File No. 333- ) of our
report dated March 29, 1996, on our audits of the financial statements and
financial statement schedule of CELLULARVISION USA, INC. as of December 31,
1994 and 1995, and for the years ended December 31, 1993, 1994 and 1995 and
for the period January 1, 1992 (date of inception) to December 31, 1995, which
report is included in the Annual Report on Form 10-K.
/s/ Coopers & Lybrand LLP
COOPERS & LYBRAND LLP
New York, New York
September 5, 1996
