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As filed with the Securities and Exchange Commission on November 24, 1999
File No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PNV INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 65-0612435
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
11711 N.W. 39TH STREET
CORAL SPRINGS, FLORIDA 33065
(954) 745-7800
(Address, Including Zip Code and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
PARK `N VIEW, INC. STOCK OPTION PLAN
(Full Title of the Plan)
ROBERT P. MAY, CHIEF EXECUTIVE OFFICER
11711 N.W. 39TH STREET
CORAL SPRINGS, FLORIDA 33065
(954) 745-7800
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
ELIZABETH G. WREN, ESQ.
KILPATRICK STOCKTON LLP
3500 ONE FIRST UNION CENTER
CHARLOTTE, NORTH CAROLINA 28202
(704) 338-5123
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value per
share, issuable upon the exercise
of outstanding options............ 1,978,343 shares $ 4.34 (2) $ 8,586,009 (2) $2,387
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Common Stock, $.001 par value per
share, issuable upon the exercise
of options available for future
grants............................ 192,991 shares $17.00 (3) $ 3,280,847 (3) $ 913
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Total.......................... 2,171,334 shares $11,866,856 $3,300
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of common
stock which become issuable under the Plan being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of common stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), solely for the purpose of calculating the
registration fee. The price of $4.34 per share represents the weighted
average exercise price of outstanding options under the Plan being
registered.
(3) Estimated in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee on the basis of $17.00, the
Price to Public set forth on the cover page of the Company's Prospectus
dated November 23, 1999 relating to its initial public offering.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by PNV Inc. (the "Registrant") with
the Commission are incorporated by reference in this Registration Statement and
made a part hereof:
(a) The Registrant's Prospectus filed on November 24, 1999
pursuant to Rule 424(b) of the Securities Act, which contains audited
financial statements for the Registrant's latest fiscal year for which
such statements have been filed;
(b) Not applicable; and
(c) The description of the Registrant's common stock contained
in the Registrant's Registration Statement on Form 8-A filed with the
Commission on November 16, 1999 pursuant to Section 12(g) of the 1934
Act.
All documents subsequently filed with the Commission by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this Registration Statement, shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of filing of
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of common stock offered hereby will be
passed upon by Kilpatrick Stockton LLP. James M. O'Connell, a partner in the law
firm of Kilpatrick Stockton LLP, is a general partner of Nelgo Investments, a
general partnership that owns 270,810 shares of the Registrant's common stock.
Mr. O'Connell owns 17.0% of Nelgo Investments.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's amended and restated certificate of incorporation
provides that the liability of a director will be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law. Under the
Delaware General Corporation Law, the directors have a fiduciary duty to the
Registrant which is not eliminated by this provision of the amended and restated
certificate of incorporation and, in appropriate circumstances, equitable
remedies such as
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injunctive or other forms of non-monetary relief will remain available. In
addition, each director will continue to be subject to liability under the
Delaware General Corporation Law for:
- breach of the director's duty of loyalty to the Registrant;
- acts or omissions which are found by a court of competent jurisdiction
to be not in good faith or which involve intentional misconduct, or
knowing violations of law;
- actions leading to improper personal benefit to the director; and
- payment of dividends or approval of stock repurchases or redemptions
that are prohibited by the Delaware General Corporation Law.
The provision also does not affect the directors' responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws.
Section 145 of the Delaware General Corporation Law empowers a
corporation to indemnify its directors and officers and to purchase insurance
with respect to liability arising out of their capacity or status as directors
and officers, provided that this provision will not eliminate or limit the
liability of a director.
- for any breach of the director's duty of loyalty to the corporation or
its stockholders;
- for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
- arising under Section 174 of the Delaware General Corporation Law; or
- for any transaction from which the directors derived an improper
personal benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder will not be deemed exclusive of any other
rights to which the directors and officers may be entitled under the
corporation's bylaws, any agreement, a vote of stockholders or otherwise. The
Registrant's amended and restated certificate of incorporation eliminates the
personal liability of directors to the fullest extent permitted by Section
102(b)(7) of the Delaware General Corporation Law and provides that the
Registrant will fully indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that that person is or was a director or officer of the
Registrant, or is or was serving at the request of the Registrant as a director
or officer of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. This indemnification will be against expenses
including attorney's fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the indemnitee in connection with such
action, suit or proceeding.
The underwriting agreement, dated November 23, 1999, by and between the
Registrant and the underwriters listed therein provides that the underwriters
are obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933.
The Registrant has obtained liability insurance covering its executive
officers and directors against claims arising from certain acts or decisions by
them in their capacities as officers and directors of the company, subject to
certain exclusions and deductible and maximum amounts, which may extend to,
among other things, liabilities arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
Exhibit No. Description
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4 Specimen Stock Certificate*
5 Opinion of Kilpatrick Stockton LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Kilpatrick Stockton LLP (Contained in Exhibit 5)
24 Power of Attorney (Contained on signature page)
99 Stock Option Plan*
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* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (Registration Statement No. 333-87343) filed with the Securities and
Exchange Commission on September 17, 1999, as amended.
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 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; 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) do not apply if 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 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; 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 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 (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 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 Securities Act of 1933 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
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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 of 1933 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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Coral Springs, State of Florida, on this 24th
day of November, 1999.
PNV INC.
By: /s/ Robert P. May
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Robert P. May, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of PNV Inc., a Delaware
corporation, do hereby constitute and appoint Robert P. May and Stephen L.
Conkling, and either of them, the lawful attorneys-in-fact and agents with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and either one of them, determine
may be necessary or advisable or required to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or either one of them, shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and in the capacities and on the dates indicated.
NAME TITLE DATE
- ---- ----- ----
/s/Robert P. May Chief Executive Officer November 24, 1999
- -------------------------------- (Principal Executive
Robert P. May Officer) and Director
/s/Stephen L. Conkling President, Chief Operating November 24, 1999
- -------------------------------- Officer and Chief Financial
Stephen L. Conkling Officer (Principal Financial
Officer)
/s/Ian Williams Director November 19, 1999
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Ian Williams
/s/Robert M. Chefitz Director November 24, 1999
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Robert M. Chefitz
/s/Thomas P. Hirschfeld Director November 19, 1999
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Thomas P. Hirschfeld
/s/Daniel K. O'Connell Director November 19, 1999
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Daniel K. O'Connell
/s/William J. Razzouk Director November 24, 1999
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William J. Razzouk
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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4 Specimen Stock Certificate*
5 Opinion of Kilpatrick Stockton LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Kilpatrick Stockton LLP (Contained in Exhibit 5)
24 Power of Attorney (Contained on signature page)
99 Stock Option Plan*
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* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (Registration Statement No. 333-87343) filed with the Securities and
Exchange Commission on September 17, 1999, as amended.
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EXHIBIT 5
ATTORNEYS AT LAW
3500 One First Union Center
KILPATRICK STOCKTON LLP 301 South College Street
Charlotte, North Carolina 28202
Telephone: 704.338.5000
Facsimile: 704.338.5125
Web site: www.kilstock.com
November 24, 1999
PNV Inc.
11711 N.W. 39th Street
Coral Springs, Florida 33065
RE: PNV INC REGISTRATION ON FORM S-8
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 (the
"Registration Statement"), to be filed by PNV Inc. (the "Registrant") with the
Securities and Exchange Commission on or about November 24, 1999 under the
Securities Act of 1933, as amended, relating to the proposed public offering of
an aggregate of up to 2,171,334 shares of common stock of the Registrant, par
value $.001 per share (the "Shares"), by the Registrant pursuant to the
Registrant's Stock Option Plan (the "Plan"). As legal counsel for PNV Inc., we
have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the issuance and sale of the
Shares pursuant to the Plan.
It is our opinion that, upon completion of the proceedings being taken,
or contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares pursuant to the Registration Statement and the Plan, including the
proceedings being taken in order to permit such transaction to be carried out in
accordance with applicable state securities laws, the Shares, when issued and
sold in the manner described in the Registration Statement and in accordance
with the resolutions adopted by the Board of Directors, will be legally and
validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ KILPATRICK STOCKTON LLP
Kilpatrick Stockton LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
PNV Inc. on Form S-8 of our report dated August 27, 1999 (September 22, 1999 as
to the fifth paragraph of Note 11), appearing in Registration Statement No.
333-87343 on Form S-1 of PNV Inc.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Certified Public Accountants
Fort Lauderdale, Florida
November 24, 1999
