As filed with the Securities and Exchange Commission on
September 30, 1998.
Registration No. 33-46836
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1* TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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WARWICK VALLEY TELEPHONE COMPANY
(Exact name of registrant as specified in its charter)
New York 14-1160510
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
47 Main Street, Warwick, New York 10990
(Address of principal executive office, including zip code)
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THE WARWICK VALLEY TELEPHONE COMPANY SAVINGS
PLAN FOR MANAGEMENT EMPLOYEES
THE WVTEA 401(k) PLAN
THE IBEW 401(k) PLAN
(Full title of the plans)
ROBERT A. SIECZEK BARBARA S. BARBER
Treasurer and Chief Financial Officer Secretary
WARWICK VALLEY TELEPHONE COMPANY WARWICK VALLEY TELEPHONE COMPANY
47 Main Street 47 Main Street
Warwick, New York 10990 Warwick, New York 10990
(914) 986-8080 (914) 986-8080
(Name, address, and telephone number, including area code,
of agents for service)
Copies to:
GEORGE M. WILLIAMS, JR., ESQ.
LEBOEUF, LAMB, GREENE & MACRAE, L.L.P.
125 West 55th Street
New York, New York 10019
(212) 424-8000
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* This Post Effective Amendment No. 1 is filed pursuant to Rule 416(b) under
the Securities Act of 1933, as amended, with respect to shares of Common
Stock of the registrant and reflects a three-for-one split of the
registrant's Common Stock on November 10, 1997.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by Warwick Valley
Telephone Company (the "Company") and/or The Warwick Valley Telephone Company
Savings Plan for Management Employees, The WVTEA 401(k) Plan and The IBEW 401(k)
Plan (the "Plans") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference in this Registration
Statement:
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1997.
2. The Company's Quarterly Report on Form 10-Q for the quarters ended March
31, 1998 and June 30, 1998.
3. The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 10, File No. 0-11174, dated April 29, 1983, filed
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934, and any amendment or report filed with the Commission for the
purpose of updating such description.
4. The Plans' Annual Reports on Form 11-K for the year ended March 31,
1998.
All documents filed by the Company and the Plans with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment that indicates that all securities offered
hereby 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 filing of such documents. Any statement
contained 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 that also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 5. Interests of Named Experts and Counsel.
The financial statements and schedules of the Company, which are
incorporated herein by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1997, and the
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financial statements and the related supplemental schedules of the Plans, which
are incorporated herein by reference to the Plans' Annual Reports on Form 11-K
for the year ended March 31, 1998 have been audited by Bush & Germain, P.C.,
independent public accountants, as indicated in their reports with respect
thereto. Such financial statements and schedules are included herein in reliance
upon the authority of said firm as experts in accounting and auditing in giving
said reports.
The shares of Common Stock that may be held under the Plans will be
original issuance shares. The legality of the shares of Common Stock of the
Company will be passed upon for the Company by LeBoeuf, Lamb, Greene & MacRae,
L.L.P.
Item 6. Indemnification of Directors and Officers.
Paragraph XII of the Company's Certificate of Incorporation, as amended,
limits, to the maximum extent permitted under New York law, the liability of
directors of the Company for monetary damages for a breach of their fiduciary
duty. Neither the amendment nor repeal of this provision can adversely affect
the protection afforded a director for any matter that occurred prior to such
amendment or repeal.
Section 402 of the New York Business Corporation Law ("BCL") permits a
corporation to limit the liability of its directors. This provision, however,
does not eliminate the duty of care imposed on a director, nor does it limit the
personal liability of a director for monetary damages for acts or omissions (i)
in bad faith; (ii) involving intentional misconduct; (iii) involving a knowing
violation of law; (iv) resulting in the director personally gaining a financial
profit or other advantage to which he or she was not legally entitled; or (v)
violating the provisions of Section 719 of the BCL, which prohibits certain
corporate actions relating to (a) the declaration of dividends, (b) purchases or
redemptions by the Company of its shares, (c) distributions of assets to
shareholders after dissolution of the Company, or (d) the making of loans to
directors.
Article X of the Company's By-Laws, as amended, indemnifies the Company's
directors and officers to the maximum extent permissible under the BCL. Section
1 of Article X of the By-Laws provides that
any person made a party to an action by or in the right of the Company
to procure a judgment in its favor, or made, or threatened to be made,
a party to an action or proceeding other than one by or in the right
of the Company to procure a judgment in its favor, by reason of the
fact that he, his testator or intestate is or was a director or
officer of the Company, or while serving as a
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director or officer of the Company, is or was serving, at the request
of the Company, as a director, officer, or in any other capacity, any
other corporation, domestic or foreign, any partnership, joint
venture, trust, employee benefit plan or other enterprise or
organization, whether profit or non-profit, shall be indemnified by
the Company against the reasonable expenses (including attorney's
fees, judgments, fines, and amounts paid in settlement) actually
incurred by him as a result of such action or proceeding, or any
appeal therein, to the full extent permissible under the New York
Business Corporation Law.
Neither the amendment nor repeal of this provision can adversely affect the
protection afforded a director or officer for any matter that occurred prior to
such amendment or repeal.
Sections 721 through 726 of the BCL address the indemnifi cation permitted
directors and officers of New York corporations.
The Company has purchased insurance providing coverage for the Company
against obligations incurred as a result of indemnification of its officers and
directors. The coverage also insures the officers and directors for a liability
against which they may not be indemnified by the Company, except a dishonest act
or breach of trust.
Item 8. Exhibits.
Exhibit No.
4(a) Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1997)
4(b) By-laws of the Company, as amended (incorporated by
reference to Exhibit 3(b) to the Company's Annual Report
on Form 10-K, for the year ended December 31, 1997)
23 Consent of Bush & Germain, P.C.
24 Powers of Attorney (previously filed or contained
herein on signature pages)
The Company undertakes that it will submit or has submitted the Plans and
any amendments thereto to the Internal Revenue Service (the "IRS") in a timely
manner and has made or will make
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all changes required by the IRS in order to qualify the Plans under Section 401
of the Internal Revenue Code.
Item 9. Undertakings.
The Company 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 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 or Form F-3 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Company 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.
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(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described under Item 6 above, or otherwise,
the Company 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 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
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
The Registrant. 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
Post-Effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Village of Warwick,
State of New York, on this 29th day of September, 1998.
WARWICK VALLEY TELEPHONE COMPANY
By: /s/ Robert A. Sieczek
Robert A. Sieczek
Treasurer and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement has been signed by the
following persons in the capacities and on the date or dates indicated.
Signature Title Date
* Fred M Knipp President and Director September 29, 1998
Fred M. Knipp (Principal Executive
Officer)
/s/ Robert A. Sieczek Treasurer and Chief September 29, 1998
Robert A. Sieczek Financial Officer
(Principal Financial
and Accounting
Officer)
* Earl V. Barry Director September 29, 1998
Earl V. Barry
* Wisner H. Buckbee Director September 29, 1998
Wisner H. Buckbee
* Howard Conklin, Jr. Director September 29, 1998
Howard Conklin, Jr.
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Joseph E. DeLuca Director
/s/ Philip S. Demarest Director September 29, 1998
Philip S. Demarest
Corinna S. Lewis Director
* Henry L. Nielsen, Jr. Director September 29, 1998
Henry L. Nielsen, Jr.
* Victor J. Marotta Director September 29, 1998
Victor J. Marotta
*By:/s/Philip S. Demarest September 29, 1998
Philip S. Demarest
Attorney-in-Fact
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The Plans. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer each of The Warwick Valley Telephone
Company Savings Plan for Management Employees, The WVTEA 401(k) Plan and The
IBEW 401(k) Plan) have duly caused this Post-Effective Amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Village of Warwick, State of New York on this 29th day
of September, 1998.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of The Warwick Valley
Telephone Company Savings Plan for Management Employees, The WVTEA 401(k) Plan
and The IBEW 401(k) Plan, and each of the undersigned persons, hereby
constitutes and appoints Philip S. Demarest and Barbara S. Barber, and each of
them, as its/his true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution for it/him and in its/his name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) of and supplements to this Registration Statement on
Form S-8 and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
such 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 to all intents and purposes and as fully as each said Plan itself and
each said person might or could do in person, hereby ratifying and confirming
all that such attorney-in-fact and agent, or a substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
THE WARWICK VALLEY TELEPHONE THE WVTEA 401(k)PLAN
COMPANY SAVINGS PLAN FOR
MANAGEMENT EMPLOYEES
By: /s/ Fred M. Knipp By: /s/ Fred M. Knipp
Fred M. Knipp Fred M. Knipp
By: /s/ Philip S. Demarest By: /s/ Philip S. Demarest
Philip S. Demarest Philip S. Demarest
By: /s/Howard Conklin, Jr. By: /s/Howard Conklin, Jr.
Howard Conklin, Jr. Howard Conklin, Jr.
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THE IBEW 401(k)PLAN
By: /s/ Fred M. Knipp
Fred M. Knipp
By: /s/ Philip S. Demarest
Philip S. Demarest
By: /s/ Howard Conklin, Jr.
Howard Conklin, Jr.
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EXHIBIT INDEX
Exhibit
No. Page No.
4(a) Certificate of Incorporation of the Company, as amended
(incorporated by reference to Exhibit 3(a) to the Company's
Annual Report on Form 10- K for the year ended December 31, 1997)
4(b) By-laws of the Company, as amended (incorporated by reference
to Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997)
23 Consent of Bush & Germain, P.C.
24 Powers of Attorney (previously filed or contained
herein on signature pages)
EXHIBIT 23
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Interests of
Named Experts and Counsel" in the Post-Effective Amendment No. 1 to the
Registration Statement on Form S-8 pertaining to The Warwick Valley Telephone
Company Savings Plan for Management Employees, The WVTEA 401(k) Plan and The
IBEW 401(k) Plan and to the incorporation by reference therein of our report
dated February 6, 1998 with respect to the financial statements of Warwick
Valley Telephone Company included in the Company's Annual Report on Form 10-K
for the year ended December 31, 1997 and our reports dated September 30, 1998
with respect to the financial statements of The Warwick Valley Telephone Company
Savings Plan for Management Employees, The WVTEA 401(k) Plan and The IBEW 401(k)
Plan included in the Plans' Annual Reports on Form 11-K for the year ended March
31, 1998.
BUSH & GERMAIN, P.C.
Syracuse, New York
September 30, 1998
