Registration No. 333-
As filed with the Securities and Exchange Commission on May 1, 1998
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ICON CMT CORP.
(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3603128
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1200 Harbor Blvd., Weehawken, New Jersey 07087
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1995 STOCK OPTION PLAN
(Full Title of the Plan)
Scott A. Baxter
President
Icon CMT Corp.
1200 Harbor Blvd., Weehawken, New Jersey 07087
(Name and Address of Agent for Service)
201-601-2000
(Telephone Number, Including Area Code, of Agent for Service)
with a copy to:
Michael Weinsier, Esq.
Parker Chapin Flattau & Klimpl, LLP
1211 Avenue of the Americas
New York, New York 10036
Telephone No.: (212) 704-6000
Facsimile No.: (212) 704-6288
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum
Title of Securities Amount to Offering Price Proposed Maximum Amount of
to Be Register be Registered(1) per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.001
per share........................ 867,999 $6.02(2) $ 5,225,353.98(2) $1,541.48(2)
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Common Stock, par value $.001
per share........................ 109,091 6.63(2) 723,273.33(2) 213.37(2)
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Common Stock, par value $.001
per share........................ 130,301 10.00(2) 1,303,010.00(2) 384.39(2)
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Common Stock, par value $.001
per share........................ 157,250 10.94(2) 1,720,315.00(2) 507.49(2)
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Common Stock, par value $.001
per share........................ 65,455 14.27(2) 934,042.85(2) 275.54(2)
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Common Stock, par value $.001
per share........................ 200,000 15.63(2) 3,126,000.00(2) 922.17(2)
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Common Stock, par value $.001
per share........................ 32,500 18.50(2) 601,250.00(2) 177.37(2)
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Common Stock, par value $.001
per share........................ 619,222 21.06(3) 13,084,488.38(3) 3,859.92(3)
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TOTAL 2,181,818 $26,680,733.54 $7,870.82
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</TABLE>
(1) Pursuant to Rule 416(b), there shall also be deemed covered hereby such
additional securities as may result from anti-dilution adjustments under
the Amended and Restated 1995 Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of, pursuant to Rule 457(h)(1), the price at which such options may
be exercised.
(3) Estimated solely for the purpose of calculating the registration fee on the
basis of, pursuant to Rule 457(h), the average of the bid and asked prices
per share of the registrant's Common Stock on the Nasdaq National Market on
April 30, 1998.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference: (i) the
description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A (File No. 0-234777), filed on December 5,
1997 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report filed for the
purpose of updating such description; and (ii) the registrant's Annual Report on
Form 10-K for the Year Ended December 31, 1997.
All documents filed subsequent to the date of this registration
statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment hereto that indicates that all
securities offered have been sold or that deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of the filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated herein by reference 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 which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that directors, officers, employees or agents of Delaware corporations
are entitled, under certain circumstances, to be indemnified against expenses
(including attorneys' fees) and other liabilities actually and reasonably
incurred by them in connection with any suit brought against them in their
capacity as a director, officer, employee or agent, if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, if they had no reasonable cause to believe their conduct was
unlawful. Section 145 also provides that directors, officers, employees and
agents may also be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by them in connection with a derivative suit
bought against them in their capacity as a director, officer, employee or agent,
as the case may be, if they acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation,
except that no indemnification may be made without court approval if such person
was adjudged liable to the corporation.
Article Eleventh of the Restated Certificate of Incorporation provides
that the Company shall indemnify any and all persons to the fullest extent
permitted by the General Corporation Law of the State of Delaware.
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The Company maintains a directors and officers liability insurance
policy with Rock River Insurance Company. The policy insures the directors and
officers of the Company against loss arising from certain claims made against
such directors or officers by reason of certain wrongful acts. The policy
provides for a combined limit of liability of $5,000,000 per policy year for
both directors' and officers' liability coverage at an annual premium of
$90,000.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4.1 Restated Certificate of Incorporation of the Company as filed
with the Secretary of State of the State of Delaware.
(Incorporated by reference to Exhibit 3.1 to the Company's
Annual Report on Form 10-K for the Fiscal Year Ended December
31, 1997, File No. 0-23477).
4.2 By-Laws of the Company (Incorporated by reference to Exhibit
3.2 to the (Incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1, File No.
333-38339 (the "Registration Statement")).
4.3 Amended and Restated 1995 Stock Option Plan of the Company
(Incorporated by reference to Exhibit 10.6 to the Registration
Statement).
5.1 Opinion and consent of Parker Chapin Flattau & Klimpl, LLP,
counsel to the Company, as to the legality of the securities
being offered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in
Exhibit 5.1).
24.1 Power of Attorney (contained in the signature page to this
registration statement).
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in
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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 and 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 percent 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
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.
(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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any delayed
offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided, that the registrant includes in the prospectus, by means of
a post-effective amendment, financial statements required pursuant to this
paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial statements
and information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Form F-3.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
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Insofar as indemnification for liabilities arising under the 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 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.
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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 New York, State of New York, on the first day of May,
1998.
ICON CMT CORP.
By: /s/ Scott A. Baxter
-----------------------
Scott A. Baxter
President, Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
The undersigned directors and officers of Icon CMT Corp. hereby
constitute and appoint Scott A. Baxter, Richard B. Brown and Scott Harmolin and
each of them, with full power to act without the other and with full power of
substitution and resubstitution, our true and lawful attorneys-in-fact with full
power to execute in our name and behalf in the capacities indicated below any
and all amendments (including post-effective amendments and amendments thereto)
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 and hereby ratify and confirm each and every act and thing that such
attorneys-in-fact, or any of them, or their substitutes, shall lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
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/s/ Scott A. Baxter President, Chief Executive Officer and May 1, 1998
- ----------------------- Chairman of the Board of Directors
(Scott A. Baxter) (Principal Executive Officer)
/s/ Richard M. Brown Vice President-Information Technologies, May 1, 1998
- ----------------------- Secretary and Director
(Richard M. Brown)
/s/ Scott Harmolin Senior Vice President, Chief May 1, 1998
- ----------------------- Technology Officer, and Director
(Scott Harmolin)
/s/ Kenneth J. Hall Senior Vice President, Chief Financial May 1, 1998
- ----------------------- Officer and Treasurer (Principal
(Kenneth J. Hall) Financial Officer)
/s/ William B. Fischer Vice President and Controller May 1, 1998
- ----------------------- (Principal Accounting Officer)
(William B. Fischer)
/s/ Samuel A. Plum Director May 1, 1998
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(Samuel A. Plum)
/s/ Wayne B. Weisman Director May 1, 1998
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(Wayne B. Weisman)
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EXHIBIT INDEX
Exhibit
Number Page No.
- ------ --------
4.1 Form of Restated Certificate of Incorporation of the Company as
filed with the Secretary of State of the State of Delaware.
(Incorporated by reference to Exhibit 3.1 to the Company's Annual
Report on Form 10-K for the Fiscal Year Ended December 31, 1997,
File No. 0-23477).
4.2 By-Laws of the Company (Incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-1, File No. 333-38339
(the "Registration Statement")).
4.3 Amended and Restated 1995 Stock Option Plan of the Company
(Incorporated by reference to Exhibit 10.6 to the registration
statement).
5.1 Opinion and consent of Parker Chapin Flattau & Klimpl, LLP, counsel
to the Company, as to the legality of the securities being offered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Parker Chapin Flattau & Klimpl, LLP (contained in Exhibit
5.1).
24.1 Power of Attorney (contained in the signature page to this
registration statement).
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[PARKER CHAPIN FLATTAU & KLIMPL, LLP LETTERHEAD]
May 1, 1998
Icon CMT Corp.
1200 Harbor Boulevard
Weehawken, New Jersey 07087
Ladies and Gentlemen:
We have acted as counsel to Icon CMT Corp., a Delaware corporation (the
"Company"), in connection with its filing of a registration statement on Form
S-8 (the "Registration Statement") being filed with the Securities and Exchange
Commission under the Securities Act of 1933, relating to the offering of up to
2,181,818 shares (the "Shares") of common stock, par value $.001 per share, to
certain executives, directors and employees of the Company issuable upon
exercise of options that either have been, or may from time to time be, granted
by the Company under its Amended and Restated 1995 Stock Option Plan (the
"Plan").
In our capacity as counsel to the Company, we have examined originals or
copies, satisfactory to us, of the Company's (i) Certificate of Incorporation,
(ii) By-laws and (iii) resolutions of the Company's Board of Directors. We have
also reviewed such other matters of law and examined and relied upon such
corporate records, agreements, certificates and other documents as we have
deemed relevant and necessary as a basis for the opinion hereinafter expressed.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the original documents of all documents submitted to us as copies or
facsimiles. As to any facts material to such opinion, we have, to the extent
that relevant facts were not independently established by us, relied on
certificates of public officials and certificates of officers or other
representatives of the Company.
On the basis of the foregoing, we are of the opinion that the Shares, when
issued and paid for upon the exercise of options granted or to be granted under,
and in accordance with, the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ PARKER CHAPIN FLATTAU & KLIMPL, LLP
PARKER CHAPIN FLATTAU & KLIMPL, LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 6, 1998 which appears on page
F-2 of Icon CMT Corp.'s Annual Report on Form 10-K for the year ended December
31, 1997.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Stamford, Connecticut
May 1, 1998
