As filed with the Securities and Exchange Commission on April 6, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EDUCATIONAL VIDEO CONFERENCING, INC.
(Exact name of Registrant as specified in its charter)
Delaware 06-1488212
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
35 East Grassy Sprain Road, Suite 200
Yonkers, New York 10710
(914) 787-3500
(Address and telephone number of registrant's principal executive offices)
Dr. Arol I. Buntzman Copies to:
35 East Grassy Sprain Road, Suite 200 Joseph D. Alperin, Esq.
Yonkers, New York 10710 Fischbein Badillo Wagner Harding
(Name and address and telephone number 909 Third Avenue
of agent for service) New York, New York 10022
(212) 826-2000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box:
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered in connection with
dividend or interest reinvestment plans, check the following box: |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering:
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering:
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box:
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CALCULATION OF REGISTRATION FEE
- ---------------------- ------------------ ------------------------- --------------------------- ------------------------
Title Of Securities Amount To Be Proposed Maximum Proposed Maximum Amount Of
To Be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- ---------------------- ------------------ ------------------------- --------------------------- ------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0001 2,640,353 (1) $28.60(2) $75,514,095(2) $19,935.72(2)
Par Value............
- ---------------------- ------------------ ------------------------- --------------------------- ------------------------
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(1) This Registration Statement also includes an indeterminable number of
shares of common stock which may be issued under the antidilution provisions of
warrants and options held by certain selling stockholders.
(2) Calculated pursuant to Rule 457(c) under the Securities Act of 1933,
based on the average of the bid and asked price on April 5, 2000 as reported by
Nasdaq.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the securities act of 1933 or until the registration statement shall become
effective on such date as the commission, acting pursuant to said section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 6, 2000
PROSPECTUS
The information in this prospectus is not complete and may be changed.
Selling stockholders may not sell these securities until the registration
statement filed with the securities and exchange commission is effective. This
prospectus is not an offer to sell these securities and it is not soliciting an
offer to buy these securities in any state where the offer or sale is not
permitted.
EDUCATIONAL VIDEO CONFERENCING, INC.
2,640,353 SHARES OF COMMON STOCK
The shares are being offered by certain stockholders named in the
prospectus. They have the right to determine both the number of shares they will
offer and the time or times when they will offer shares. They may sell the
shares at the market price at the time of sale or at such other prices as they
may negotiate. We will not receive any proceeds from the sale of the shares of
this offering.
Our common stock is quoted on the Pacific Exchange and the Boston Stock
Exchange under the symbol "EVI" and the Nasdaq SmallCap Market under the symbol
"EVCI." On April 5, 2000, the closing sale price of our common stock, as
reported by Nasdaq, was $29.75 per share.
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These are speculative securities and this
investment involves a high degree of risk.
See "Rick Factors" beginning on page 4.
----------------------------------------------
The Securities and Exchange Commission and state securities regulators
have not approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
_____, 2000
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You should rely only on the information contained in or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
different information. Offers of these securities are not being made in any
state where the offer is not permitted. You should not assume that the
information contained in or incorporated by reference in this prospectus is
accurate as of any date other than the date on the front of this prospectus.
TABLE OF CONTENTS
PAGE
WHERE YOU CAN FIND MORE INFORMATION...........................................1
PROSPECTUS SUMMARY............................................................2
RISK FACTORS..................................................................4
USE OF PROCEEDS FROM EXERCISE OF WARRANTS AND OPTIONS........................12
SELLING STOCKHOLDERS.........................................................13
PLAN OF DISTRIBUTION.........................................................14
INDEMNIFICATION OF DIRECTORS AND OFFICERS....................................15
LEGAL MATTERS................................................................16
EXPERTS......................................................................16
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other reports, proxy statements and
other information with the Securities and Exchange Commission. You may read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov. Our reports, proxy statements and other information are also
available to the public at the Nasdaq's web site at http://www.nasdaq.com.
This prospectus is part of a Registration Statement on Form S-3 filed
with the SEC under the Securities Act of 1933. This prospectus omits some of the
information contained in the Registration Statement. You should refer to the
Registration Statement for further information with respect to the securities
offered by this prospectus. Any statement contained in this prospectus
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the SEC is not necessarily
complete, and in each case you should refer to the copy of the document filed
for complete information.
The SEC allows us to "incorporate by reference" the information we file
with it, which means we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be a part of this prospectus, and later information that we file with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until all of the securities covered by this prospectus are sold by the selling
stockholders.
1. Our annual report on Form 10-KSB for our fiscal year ended December
31, 1999, filed March 30, 2000.
2. Our current report on Form 8-K filed January 31, 2000, as amended
by Form 8-K/A filed March 28, 2000.
3. Our current report on Form 8-K filed February 18, 2000, as
amended by Form 8-K/A filed March 7, 2000.
4. The description of our Common Stock contained under the caption
"Description of Capital Stock" in our Prospectus filed February
24, 1999 pursuant to Rule 424(b) under the Securities Act.
You may request a copy of these filings, at no cost, by writing or
telephoning us:
35 East Grassy Sprain Road, Suite 200
Yonkers, New York 10710
Attention: Richard Goldenberg, Chief Financial Officer
(914) 787-3500
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PROSPECTUS SUMMARY
About our company
We are a leading aggregator and distributor, via live interactive
video conferencing systems, of accredited college courses and degree programs,
as well as corporate training, professional development and continuing education
programs. The instructor can see and hear the students as the students see and
hear the instructor and communicate with the instructor and other students at
multiple locations. Educational content is currently being delivered by us over
high speed point-to-point or multi-point digital data lines (T-1 or ISDN). We
are deploying our proprietary broadband network design which, using Internet
Protocol infrastructure technology, permits us to continue to provide two-way
multi-point, multi-media voice, video and data transmissions, including over the
Internet, but with controlled bandwidth and throughput. Using our broadband
network design, we can deliver educational content at 30 frames per second
(broadcast quality) through DSL, ATM, T-1 lines, cable modems or satellite.
We can deliver content to conference and training rooms and desktop
computers equipped with video conferencing capability. We believe that our
distance learning technology and content delivery services come closest to
replicating the classroom experience. We also provide the consultative,
marketing and administrative services necessary to recruit and enroll students
and deliver courses and programs to them.
We presently can offer more than 2,100 courses and 200 degree programs
from education providers that include St. John's University, Adelphi University,
Clemson University, Manhattan College, The College of Insurance, Mercy College,
Concordia College, Touro University International, and Kaplan Educational
Centers. Commencing in the Fall 2000, we expect to begin offering courses and
programs provided by San Francisco-based Golden Gate University and by Interboro
Institute, a two year college in New York City that we have owned and operated
since January 2000. We can also offer over 1,000 training, professional
development, and continuing education courses from several providers. Since
beginning to offer courses in February 1998, we have delivered 237 classes that
have resulted in 3,246 completed courses. We are currently delivering 1,176
courses to 91 sites located in more than 15 cities. This includes 51
asynchronous courses being delivered via the Internet.
Our customers include:
o Major corporations, including Citibank, N.A., American
International Group, Inc., Merrill Lynch & Co., Inc., Reliance
National, Travelers Indemnity Company, and Lockheed Martin Corp.
o Community outreach programs in New York City and Rochester with
economically disadvantaged constituents who can qualify for
substantial tuition grants.
o The City of Rochester School District and the Board of Education
of the City of New York School (school district 10).
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We have co-marketing agreements with Bell Atlantic and @Home Network
that will give us marketing access to more major corporations and more than 75
million U.S. households. We also have a co-marketing agreement with We Media,
Inc. that gives us marketing access to 54 million disabled Americans.
We were organized in March 1997. We completed an underwritten initial
public offering of our common stock in the first quarter of 1999. Our principal
executive offices are located at 35 East Grassy Sprain Road, Suite 200, Yonkers,
New York 10710 and our telephone number is (914) 787-3500 . We maintain a world
wide web site at www.evcinc.com. This reference to our world wide web site
address does not constitute incorporation by reference of the information
contained therein.
THE OFFERING
The purpose of this offering is to register the resale of the shares
of common stock owned by the selling stockholders. The selling stockholders are
required to deliver a copy of this prospectus in connection with any sale of
these shares.
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<S> <C> <C>
Common stock offered:........................................ 2,640,353 shares
Common stock outstanding .................................... 4,347,243 shares
Common stock outstanding if all shares offered are sold...... 5,936,466 shares
Net offering proceeds to us:................................. None
</TABLE>
Please note the following:
o The 2,640,353 shares offered include 1,051,130 shares that are
outstanding. The remaining shares are purchaseable from us upon
conversion of our Series A 7.5% Convertible Preferred stock and
upon exercise of warrants and options.
o We will receive proceeds of up to $7,973,075 from the exercise
of options and warrants prior to the sale of the underlying
shares by selling stockholders.
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RISK FACTORS
You should carefully consider the risks described below before making
an investment decision. If any of the following or other risks actually occur,
our business, financial condition or results of operations could be materially
and adversely affected.
Because we have had limited revenues and anticipate continuing significant
losses we may not be able to achieve profitability.
Our net revenue for the year ended December 31, 1999 was $752,777 and
our accumulated losses at December 31, 1999 were $9,578,439. We believe we may
be unable to generate enough revenue to offset our operating costs until at
least the fourth quarter of 2000. However, we cannot assure you that we will
ever generate sufficient revenue to achieve or sustain profitability.
Our continued negative cash flow could materially impede our ability to operate.
Because our expenses have been growing at a much faster rate than our
revenues, we have experienced, and expect to continue to experience, negative
cash flow from operations at least until the fourth quarter of 2000. Our
negative cash flow from operations was $2,304,980 in 1998 and $6,084,932 in
1999. At December 31, 1999 we had $6,925,823 in cash and cash equivalents. In
February 2000, we received net proceeds of $3,740,000 from the sale of our
Series A preferred stock to The Shaar Fund Ltd. The rate at which we are using
cash to operate and grow our business may limit our ability to continue to
implement our business strategy.
Our cash flow is unpredictable because we do not control tuition billing by our
higher education providers and collection from our corporate customers.
Our higher education providers control the entire billing and
collection process and we do not receive our share of tuition until they receive
payment. In most cases, we have been receiving our share more than 90 days after
completion of courses and, in some cases, more than nine months after completion
of courses. We believe this is caused mostly by the inability of our education
providers to expedite billing procedures and of our corporate customers to
expedite processing requests for payment from their employees. The requirement
by most of our corporate customers that they receive evidence of satisfactory
completion of higher education courses by their employees, before requests for
payment can be processed, also contributes significantly to these delays.
Our plan to require advance tuition payments and corporate guarantees of
deferred tuition may adversely affect enrollment.
We plan to require advance payment of at least 50% of tuition for
higher education courses or, alternatively, that deferred payments be guaranteed
by the corporate employer. This new policy will be implemented following the
current semester and it could be several months before we know its impact. We
currently have no other plan to improve tuition collection for our higher
education courses.
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Our success may depend on our ability to obtain substantial additional
financing.
From our inception in March 1997 through March 31, 2000, we have
received net proceeds from offerings of our debt and equity securities of
$22,858,266. At December 31, 2000, we had working capital of $6,985,384. Based
on current plans and assumptions relating to our operations, we believe that
cash flow from our operations and the cash remaining from our financings will be
sufficient to satisfy our cash requirements until at least December 31, 2000.
After that, we expect to require additional funding in order to grow. If,
however, we are underestimating our cash needs, we will require additional debt
or equity financing sooner. Our ability to obtain the necessary financing, and
its cost to us, are uncertain. Accordingly, we may be forced to curtail our
planned business expansion and may also be unable to fund our ongoing
operations.
Our greater emphasis on providing training and development content may not
increase our revenues substantially.
We recently decided to place greater emphasis on offering training and
professional development content to existing and potential corporate customers
because we believe this new strategy can accelerate our revenue growth. Our
change in strategy has required us to expend substantial time and effort to
obtain contracts with training and development content providers. We are in the
initial stages of marketing the content we have aggregated and continue to
aggregate. It is, therefore, too early to determine if our new strategy will
accelerate our revenue growth. Furthermore, the success of our marketing efforts
could be hindered by guarantees we are requiring of minimum student enrollment.
Our dependence on a limited number of education providers for courses and
programs could limit our ability to increase student enrollment to profitable
levels.
Our success depends upon our ability to establish and maintain
relationships with colleges, universities and training and professional
development organizations that can provide the courses and degree and other
programs desired by our customers and their employees. We have entered into
multi-year agreements with most of our approximately 15 education providers.
However, we cannot be certain that our education providers will offer either the
courses or programs desired by our corporate customers and their employees. This
uncertainty stems from factors that include academic standing, scheduling of
class times and creating sufficient demand for particular courses so that
classes have minimum numbers of students. We, therefore, are seeking to
diversify our available content by obtaining agreements with other education
providers.
The substantial time, financial resources and effort required to obtain
contracts is impeding our growth and ability to become profitable.
Our focus on obtaining contracts with education providers,
corporations, co-marketing partners and community based organizations has
limited our ability to implement existing
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contracts. Once contact with a potential customer is initiated, it generally
takes between four and six months to conclude a contract. We have been in
discussions with several potential corporate customers for more than 12 months.
Our ability to conclude contracts with large corporate customers and
co-marketing partners is also affected by the reputation and standing of our
education providers and their ability to offer the training and professional
development courses and programs needed by corporate customers and the higher
education programs approved by them.
We believe we need to substantially increase enrollment by employees of large
corporate customers in order for our distance learning services to become
profitable.
Approximately 40% of our net revenue for 1999 resulted from courses
completed by our corporate customers. The remaining portion of 1999 net revenue
resulted primarily from courses completed by participants in community outreach
programs. While we believe enrollment from community outreach programs will
continue to grow, we cannot become profitable without even greater increases in
corporate employee enrollment in training, corporate development and higher
education courses offered by us.
We are depending on others to materially increase our student enrollment.
We need to market our services to large numbers of potential students
in order to materially increase our enrollment. We believe this requires us to
have access to the employees of large corporations and that this access can best
be obtained by having co-marketing alliances with entities that have large
customer bases and experienced sales personnel. We have, accordingly, been
focusing less on obtaining new corporate customers on our own in favor of
obtaining co-marketing partners such as Bell Atlantic and @ Home Network. In the
process, we are becoming dependent upon them to increase our marketing reach and
effectiveness. We do not have control over either the marketing priorities of
our co-marketing partners or the effort and resources they devote to marketing
our content and delivery services. Our co-marketing strategy may not
substantially improve our student enrollment.
Demand for our broadband network design may not be enough to generate any
significant revenues or profits for us.
Technical problems or delays in installing our broadband network
design, as well as unanticipated operational problems, could occur. We have no
experience in installing or operating broadband networks except for our own
installation that has been used to test its effectiveness. We also have no
experience in pricing network installations or their operation for others. These
factors and the substantial costs of installation that we would require our
customers to pay could prevent the successful launch of our new broadband
network services.
Our broadband network design may not provide a short or long-term competitive
advantage.
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We have no patent protection for our broadband network design and
currently intend to protect it as a trade secret. This may be inadequate to
protect our design. Our competition may, at any time, develop similar or
superior technology that diminishes any advantage which our technology may now
have in the marketplace.
Changes in training and education policies of our corporate customers could
quickly and materially decrease our existing and potential student enrollment
and, therefore, our revenue.
Our contracts with our corporate customers do not give us protection
against subsequent changes in their corporate tuition reimbursement policies or
shifts in their attitudes toward higher education opportunities for employees.
Contracts we may obtain to deliver training or professional development content
may not protect us against changes in corporate training budgets or policies. If
training budgets or tuition reimbursement are materially curtailed by our
customers, student enrollment would materially and precipitously decline. The
likelihood of this happening is much greater during an economic downturn in a
particular industry sector or the economy in general.
The lack of exclusivity and non-compete provisions could materially impair the
value of our corporate customer agreements.
None of our agreements with customers gives us an exclusive right to
deliver courses to their employees or constituents and we do not foresee being
able to obtain exclusivity. There are no restrictions in our agreements with
customers, and none are contemplated, to prohibit them from competing with us or
from using products or services that compete with us. Accordingly, our customers
could materially impair our ability to enroll their employees or constituents in
our courses and programs by actively encouraging them to enroll in competing
courses and programs.
Demand for our services may not increase rapidly because education via video
conferencing is not yet widely accepted.
Education via video conferencing is a relatively new alternative to
traditional classroom instruction. Video conferencing is relatively expensive
compared to asynchronous and other distance learning delivery systems because it
requires special equipment and is most effectively delivered over broadband high
speed transmission lines. Our experience has been that some instructors are
unwilling to teach by means of interactive video conferencing systems or to
adopt our method of teaching. We have also encountered some reluctance from some
students to use our education delivery method. For these and other reasons, many
colleges, universities and students may be unwilling to accept our delivery
concept as an appropriate way to provide quality education. The extent to which
education using video conferencing is accepted, and the rate of acceptance, will
materially affect our ability to achieve our objectives.
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We depend on our chairman, president and other key management personnel to
operate and grow.
We believe the efforts of our executive officers and other management
personnel, including Dr. Arol I. Buntzman, our chairman and chief executive
officer, and Dr. John J. McGrath, our president, are essential to our operations
and growth. The loss of the services of Drs. Buntzman or McGrath would
materially adversely affect us. We maintain insurance on the life of Dr.
Buntzman in the amount of $2 million and have employment agreements, expiring
December 31, 2001, with each of Dr. Buntzman, Dr. McGrath and several other key
employees.
To succeed, we need to attract and retain more senior management and, skilled
administrators and technicians in a highly competitive labor market.
We need to hire more senior management in order to operate and grow.
Our business also requires the services of more skilled administrators to manage
student recruitment and enrollment, develop strategies to increase student
retention, train instructors and deal generally with college and corporate
administrators. It is too early to determine whether our recent outsourcing of
student recruitment and enrollment services will be better for us than using our
own staff. We also require technicians to effectively operate our interactive
video conferencing systems and deploy and operate our broadband network. The
competition for qualified management, skilled administrators and technicians is
intense. If we cannot attract new employees or retain and motivate our existing
employees, our business would be adversely affected.
Education providers and others with greater resources and name recognition could
make it very difficult for us to compete.
Two and four year colleges offering traditional classroom instruction
are our most significant competition in our distance learning business and with
respect to the on-campus courses and programs given by Interboro Institute. In
addition, alternative methods of delivering courses are proliferating rapidly.
These alternatives are usually less expensive and more readily available than
video conferencing. Interactive video conferencing equipment has been used
throughout the world for more than five years, the technology upon which it is
based is established and its cost has been declining. We expect a significant
increase in direct competition from numerous colleges and universities and from
large corporations. In addition, recent amendments to the Higher Education Act
encourage more competition by providing government incentives for distance
learning companies.
Since there are no significant barriers to entry into our market, we face
increasing competition from other distance learning companies that offer a
variety of other products and delivery services.
Our current distance learning competition includes numerous companies
that offer a variety of asynchronous and synchronous delivery methods. These
include Internet-based
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instruction, one-way and limited two-way satellite video conferencing, video
and audio cassettes and CD-roms. New products and services will probably be
developed, including by competitors and potential competitors that are much
larger and have greater development, marketing and financial resources than
we do.
Our agreements and relationships with our education providers may help them to
compete with us.
Our agreements with our education providers do not restrict the
education provider from competing with us except, in most cases, as long as it
does not offer courses via competing interactive video conferencing systems to
our corporate customers and their employees during the term of the agreement and
for one year after its termination. By teaching our education providers how to
deliver courses and programs via interactive video conferencing, we may be
helping them to compete with us, even during the terms of their agreements with
us.
We may need to replace obsolete equipment at substantial unanticipated costs.
Our success will depend on our ability to adapt timely and effectively
to rapidly occurring technological advances in telecommunications and video
conferencing equipment. To remain competitive, we may need to make substantial
capital investments in new equipment that has made our existing equipment
obsolete. Other technologies developed by competitors may significantly reduce
demand for our services or render our services obsolete.
Regulatory changes may impose constraints, additional costs or other burdens on
us and education providers.
State and local agencies, as well as federal lawmakers, are currently
evaluating laws and regulations that could have a significant impact on our
business. It is uncertain to what extent this impact will be favorable or
adverse, or when regulatory authorities will take action.
Many states are re-evaluating their educational licensing requirements
to reflect new developments in distance learning. Our agreements with our
education providers require them to obtain the accreditation and licenses
necessary to offer their courses, certificates and degrees in our programs. If
state or local authorities impose new or more burdensome licensing requirements
on our education providers, we may be unable to attract or retain the education
providers on which our business depends.
Federal agencies and independent accreditation organizations are also
conducting reviews of new and existing laws and policies. We cannot predict the
scope or outcome of these reviews. Additional regulation resulting from these
reviews, if any, may materially adversely affect us by increasing the costs or
administrative burdens of providing education programs, or by discouraging
education providers from participating in our distance learning business.
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Interboro Institute is subject to extensive federal and New York State
regulation because it depends on substantial federal and state funds in order to
operate.
Interboro's participation in the Pell Grant program under Title IV of
the Higher Education Act subject it to frequent reviews and detailed oversight
and require it to comply with complex laws and regulations. Similarly, Interboro
is subject to extensive regulation and oversight by New York State
administrators of the TAP program. Approximately $6.1 million in Pell and TAP
financial aid was provided to Interboro students during Interboro's fiscal year
ended June 30, 1999. Most of Interboro's students rely on this aid to pay all of
their tuition. Any significant curtailment or delays in disbursement of Pell or
TAP funds would have a material adverse effect on Interboro.
Interboro Institute's prior problems with regulators could reoccur and adversely
affect its operations.
Prior to acquiring Interboro, TAP administrators disallowed
approximately $4,800,000 of grants previously disbursed to Interboro for
academic years 1989/1990 through 1991/1992. After protracted litigation,
Interboro was required to repay approximately $5,850,000, including $1,050,000
of interest, to the New York State Higher Education Services Corporation. The
entire amount has been fully paid. However, Funds disbursed to Interboro
subsequent to academic year 1992 are still subject to audit by TAP
administrators as are future disbursements. In addition, Pell administrators
could suspend or disallow Pell grants.
Our chairman and other principal stockholders can act together to control our
business and policies without the approval of other stockholders.
Our officers and directors as a group, together with Tayside Trading,
Ltd., DEWI Investments Limited and B&H Investments Ltd. can vote more than 50%
of our common stock, before giving effect to this offering. This is sufficient
to control the outcome of any stockholder vote. In addition, as a result of
voting agreements our chairman has with our president and chief financial
officer, our chairman has the power to direct the vote of more than 25% of the
common stock. This will probably be sufficient for Dr. Buntzman to alone control
the outcome of any stockholder vote.
Sales, or the expectation of sales, of substantial amounts of our common stock
in this offering or otherwise could decrease our stock price.
There will be no underwriter or coordinating broker to manage the
distribution of the up to 2,640,353 shares offered and sold in this offering.
Accordingly, there will be no control over the timing and amount of shares sold
by selling stockholders. In addition, as of March 1, 2000, approximately
1,500,000 shares that are not included in this offering can be sold from time to
time under Rule 144. Also, up to 411,000 shares will become eligible for resale
publicly from time to time following exercise of options granted to our
employees.
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The issuance of shares by us to the selling stockholders will dilute our other
stockholders.
The 724,122 shares covered by this prospectus that underly options and
warrants are issuable by us at between $2.00 and $25.00 per share, or an average
of $11.29 per share. The shares issuable to The Shaar Fund would total
approximately 155,000 shares, assuming the market price of our common stock was
$30 upon conversion of its preferred stock. We would issue approximately 865,101
shares of our common stock upon The Shaar Fund's conversion of all of our
preferred stock if the market price of our common stock was then approximately
$5.375. The market price of our common stock is the only limitation on the
number of shares of our common stock issuable to The Shaar Fund upon conversion
of its preferred stock.
Our share price has ranged greatly since we went public and may be very volatile
in the future.
Since our public offering in February 1999, the market price of our
common stock has ranged between $6.00 and $40.94.
In the future, our share price could be affected by a number of
factors, including:
o actual or anticipated fluctuations in our operating results;
o changes in expectations as to our future financial performance or
changes in financial estimates of securities analysts;
o increased competition from major corporations or well-known
colleges and universities;
o announcements of technological innovations;
o the operating and stock price performance of other comparable
companies; and
o general stock market or economic conditions.
In addition, the stock market in general has experienced volatility
that often has been unrelated to the operating performance of particular
companies. These broad market and industry fluctuations may adversely affect the
trading price of the common stock regardless of our actual operating
performance.
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Provisions of law and an agreement with our chief executive officer may prevent
take-overs and depress the price of our shares.
Certain provisions of Delaware law and an agreement with our chief
executive officer could make it more difficult for a third party to acquire, or
discourage a third party from attempting to acquire, control of us. Such
provisions could limit the price that investors might be willing to pay in the
future for the common stock because they believe our management can defeat a
take-over of our company that could be beneficial to non-management
stockholders.
Our classified board limits stockholder voting for election and removal of
directors.
Our board of directors is divided into three classes. The directors in
each class will be elected for three year terms when their class stands for
election at a stockholders meeting. This staggering of director terms protects
directors from being removed from office by anyone engaged in a proxy contest
for control of the board and dilutes the ability of stockholders to influence
corporate governance policies. Furthermore, a director may only be removed, with
or without cause, by the holders of 66 2/3% of the shares entitled to vote at an
election of directors.
Indemnification and limitation of liability of our officers and directors may
insulate them from accountability to stockholders at substantial cost to us.
Our certificate of incorporation and by-laws include provisions
whereby our officers and directors are to be indemnified against liabilities to
the fullest extent permissible under Delaware law. Our certificate of
incorporation also limits a director's liability for monetary damages for breach
of fiduciary duty, including gross negligence. In addition, we have agreed to
advance the legal expenses of our officers and directors who are required to
defend against claims. These provisions and agreements may have the effect of
reducing the likelihood of suits against directors and officers even though such
suits, if successful, might benefit us and our stockholders. Furthermore, a
stockholder's investment in our company may be adversely affected if we pay the
cost of settlement and damage awards against directors and officers.
Forward Looking Information
This prospectis contains, and incorporates by reference,
forward-looking statements that involve assumptions, risks and uncertainties.
The words "anticipate," estimate," "expect," "will," "could," "may," "is
targeting" and similar words are intended to identify forward-looking
statements. EVCI's actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
the risk factors set forth above. Should any one of these or other risks and
uncertainties materialize, or should underlying assumptions prove incorrect,
actual results may vary materially from those anticipated by forward-looking
statements. We undertake no obligation to update forward-looking statements.
USE OF PROCEEDS FROM EXERCISE OF WARRANTS AND OPTIONS
We will not realize any proceeds from the sale of the shares pursuant
to this prospectus. At most, we will receive a total of $7,973,075 if all
warrants and options to purchase 724,122 shares offered by this prospectus are
exercised by selling stockholders who do not utilize cashless exercise
provisions of their warrants and options. These proceeds will be available to us
for working capital and general corporate purposes.
12
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the name of total number of shares of
common stock owned and offered by each selling stockholder. Except as disclosed
in the footnotes to the table, we know of no material relationship between any
selling stockholder and us during the past three years. After the offering is
complete, none of the selling stockholders will own more than one percent of our
outstanding common stock, except as indicated in footnote (4) to the table.
<TABLE>
<CAPTION>
Number of Shares Beneficially Number of Shares
Selling Stockholder Owned as of March 1, 2000 Offered
- ------------------- ------------------------- -------
<S> <C> <C>
The Shaar Fund Ltd. - 905,101(1)
DEWI Investments Limited 533,334 533,334
Tayside Trading, Ltd. 417,705 400,000
B&H Investments Limited 268,409 268,409
Prime Charter Ltd. 120,000 120,000
Arthur H. Goldberg 114,000(2) 104,000(2)
Joseph Leitner 89,092 89,092
First Geneve Holdings, S.A. 59,047 59,047
Peter Solomon Ltd. 50,000 50,000
Adelphi University 37,500 37,500
American International Investors 38,000 18,000
Bruce R. Kalisch 25,000 25,000
Richard and Maureen Wiencek 13,750 7,500
Gerald W. Lanclos 10,500 3,000
J.P. Turner & Company, LLC 2,580 2,580
Estate of Jack Geddy Goldberg 8,750 2,500
George Sinel 8,750 2,500
James Mollitor(3) 18,750 2,500
Russell Lascala 7,000 2,000
Alfus Financial Services, L.L.C. 115,790(4) 1,290
Eugene Crance 1,000 1,000
Virginia A. Gamper 3,500 1,000
Cynthee and Steve Karlin 3,500 1,000
Ellen and Alan Rutsky 3,500 1,000
John A. and Patricia A. Daly 3,500 1,000
Robin and Steven Levy 3,500 1,000
Leonard Goldberg 500 500
Andrew D. Lee 2,750 500
--------- ---------
1,959,707 2,640,353
========= =========
</TABLE>
_________________________
(1) Includes 865,101 shares issuable between August 31, 2000 and February 3,
2003 upon conversion of our Series A 7.5% Convertible Preferred Stock,
having an aggregate stated value of $4,000,000. The actual number of
shares issuable is based on a percentage of the per share market price of
our common stock: 87.5% prior to September 30, 2000 and 85% thereafter,
subject to adjustment. More shares are included, than would currently be
required to cover these conversions, in the event of a decline in the
market price of our common stock. The remaining 40,000 shares underly
warrants that become exercisable the earlier of February 3, 2001 or the
date immediately after a period of 60 consecutive trading days during which
our common stock trades above $23.50.
(2) Includes options to purchase 25,000 shares that become exercisable on March
4, 2001. Mr. Goldberg has been a consultant to us since March 1998 and has
served on our board of directors since February 1999. As a consultant, he
has been granted options to purchase 100,000 shares of our common stock.
(3) Joined us as vice president of operations in July 1998 and has served as
our chief technical officer since December 1999.
(4) After the offering, the remaining 114,500 shares will constitute 2.6% of
our outstanding common stock as of March 1, 2000. Alfus Financial Services
has been a consultant to us since June 1999 after serving as a consultant
to us from March 1997 to December 1998.
13
<PAGE>
PLAN OF DISTRIBUTION
We will receive no part of the proceeds of any sales made by the
selling stockholders. We will pay all expenses of registration incurred in
connection with this offering and the offering and sale of the shares, other
than commissions, discounts and fees of brokers, dealers or agents.
The selling stockholders and any broker-dealers participating in the
distribution of the shares may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933, and any commissions or discounts given to any
such broker-dealer may be regarded as underwriting commissions or discounts
under that Act.
The selling stockholders may from time to time sell all or a portion
of their shares in the over-the-counter market or on any national securities
exchange on which our common stock may be listed or traded, at prices then
prevailing or related to the then current market price or at negotiated prices.
The shares will not be sold in an underwritten public offering. The shares may
be sold directly or through brokers or dealers. The methods by which the shares
may be sold include:
o a block trade (which may involve crosses) in which the broker or
dealer so engaged will attempt to sell the shares as agent but
may position and resell a portion of the block as principal to
facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
o privately negotiated transactions.
In effecting sales, brokers and dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate. Brokers or
dealers may receive commissions or discounts from the selling stockholders (or,
if any such broker-dealer acts as agent for the purchaser of such shares, from
such purchaser) in amounts to be negotiated which are not expected to exceed
those customary in the types of transactions involved. Broker-dealers may agree
with selling stockholders to sell a specified number of such shares at a
stipulated price per share, and, to the extent such broker-dealer is unable to
do so acting as agent for a selling stockholder, to purchase as principal any
unsold shares at the price required to fulfill the broker-dealer commitment to
such selling stockholder.
14
<PAGE>
Broker-dealers who acquire shares as principals may thereafter resell
such shares from time to time in the over-the-counter market, in negotiated
transactions or otherwise at market prices prevailing at the time of sale or at
negotiated prices, and in connection with such resales, may pay to or receive
from the purchasers of such shares commissions computed as described above.
The selling stockholders will be subject to applicable Exchange Act
rules and regulations, including Regulation M, which may limit the timing of
purchases and sales of shares of our common stock by them.
The selling stockholders may enter into hedging transactions with
broker-dealers. Broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with the selling stockholders.
Except as specified in the next sentence, the selling stockholders may also sell
the shares short and redeliver the shares to close out the short positions. The
Shaar Fund has agreed that neither it nor its affiliates nor any person acting
on their behalf will sell our common stock short, or do something similar, while
any of the preferred shares they bought from us remains outstanding.
The shares covered by this prospectus that have been paid for and held
for at least one year may also be sold pursuant to Rule 144 under the Securities
Act of 1933.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our certificate of incorporation and by-laws provide that we will
indemnify to the fullest extent permitted by law any person made or threatened
to be made a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person or such
person's testator or intestate is or was a director, officer or employee of our
company or serves or served at our request as a director, officer or employee of
another corporation or entity.
We have has entered into agreements to indemnify our directors and
officers, in addition to the indemnification provided for in our certificate of
incorporation and by-laws. These agreements, among other things, indemnify our
directors and officers for certain expenses (including advancing expenses for
attorneys' fees), judgments, fines and settlement amounts incurred by any such
person in any action or proceedings, including any action by us or in our right,
arising out of such person's services as a director or officer of our company,
any subsidiary of ours or any other company or enterprise to which the person
provides services at our request. In addition, we have insurance providing
indemnification for our directors and officers for certain liabilities. We
believe that these indemnification provisions and agreements and related
insurance are necessary to attract and retain qualified directors and officers.
15
<PAGE>
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that, in the opinion of the SEC, such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
LEGAL MATTERS
Our counsel, Fischbein Badillo Wagner Harding, New York, New York,
will issue an opinion on the legality of the shares of common stock offered by
this prospectus.
EXPERTS
Our financial statements for the years ended December 31, 1999 and
1998 that are incorporated by reference in this prospectus have been so
incorporated in reliance upon the report of Goldstein Golub Kessler LLP,
independent auditors, given upon the authority of such firm as experts in
accounting and auditing.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the estimated expenses (other than
underwriting discounts and commissions) payable by the Registrant in connection
with the issuance and distribution of the securities being registered. Except
for the SEC filing fee, all expenses have been estimated and are subject to
future contingencies.
SEC registration fee................................ $19,935.72
PCX, BSE and Nasdaq listing fees.................... *
Legal fees and expenses............................. *
Blue sky fees and expenses.......................... *
Miscellaneous....................................... *
-----------
Total $
==========
- ----------------
* To be completed by amendment.
Item 15. Indemnification of Directors and Officers
The Amended and Restated Certificate of Incorporation and By-Laws of
the Registrant provide that the Registrant shall indemnify any person to the
full extent permitted by the Delaware General Corporation Law (the "GCL").
Section 145 of the GCL, relating to indemnification, is hereby incorporated
herein by reference.
In accordance with Section 102(a)(7) of the GCL, the Restated
Certificate of Incorporation of the Registrant eliminates the personal liability
of directors to the Registrant or its stockholders for monetary damage for
breach of fiduciary duty as a director with certain limited exceptions set forth
in Section 102(a)(7) of the GCL.
The Registrant also has indemnification agreements with each of its
officers and directors, the form of which is filed as Exhibit 10.21, to which
reference is hereby made.
II-1
<PAGE>
Item 16. Exhibits
Exhibit No.* Description of Exhibit
- ------------ ----------------------
3.1[1] -- Certificate of Incorporation of the Registrant.
3.1.(a)[6] -- Certificate of Amendment to Certificate of
Incorporation.
3.2[6] -- Amended and Restated By-Laws of the Registrant.
3.3[1] -- Certificate of Merger of Educational Video
Conferencing, Inc. (a New York Corporation) into the
Registrant (a Delaware Corporation).
3.4[1] -- Certificate of Correction of the Certificate of
Incorporation of the Registrant.
3.5[10] -- Second Amended Certificate of Designation of Series A
7.5% Convertible Preferred Stock of the Registrant.
3.5(a)[11] -- Certificate of Correction of Second Amended
Certificate of Designation of Series A 7.5%
Convertible Preferred Stock of the Registrant.
4.1[1] -- Form of Common Stock Purchase Warrant issued to
investors in private placements and for services
provided in connection with such private placements.
4.2[1] -- Tayside Common Stock Purchase Warrant.
4.3[5] -- Adelphi Common Stock Purchase Warrant.
4.4[5] -- Form of Representative's Warrant Agreement (including
Form of Representative's Warrant).
4.5[5] -- Form of Common Stock Certificate.
4.6[5] -- Amended and Restated 1998 Incentive Stock Option Plan
of the Registrant.
4.7[9] -- Warrant Agreement, dated as of January 14, 2000,
between Educational Video Conferencing, Inc. and
Bruce R. Kalisch.
4.8[10] -- Common Stock Purchase Warrant, dated as of February
3, 2000, issued to The Shaar Fund Ltd.
4.8[10] -- Form of Finders' Warrant (relating to the issuance of
warrants to purchase 3,870 shares of the Registrant's
common stock).
II-2
<PAGE>
5.1 -- Opinion of Fischbein Badillo Wagner Harding.
+10.1[3] -- Agreement between the Registrant and Adelphi
University for the Offering of Interactive Televideo
Courses, dated May 13, 1997.
+10.2[2] -- Agreement between the Registrant and The College of
Insurance for the Offering of Interactive Televideo
Courses, dated September 16, 1997.
+10.3[2] -- Agreement between the Registrant and Mercy College
for the Offering of Interactive Video Conferenced and
Computer Courses, dated March 10, 1998.
10.4[1] -- Agreement between the Registrant and Reliance
National for the Offering of Interactive Televideo
Courses and Distance Learning Programs, dated October
7, 1998.
10.5[1] -- Agreement between the Registrant and Citibank, dated
May 20, 1997.
10.6[1] -- Agreement between the Registrant and American
International Group, dated May 21, 1997.
10.7[1] -- Agreement between the Registrant and Merrill Lynch
for the Offering of Interactive Televideo Courses and
Distance Learning Programs, dated June 3, 1998.
10.7(a)[8] -- Agreement between the Registrant and Merrill Lynch,
Pierce, Fenner & Smith Incorporated for the Offering
of Interactive Televideo Courses and Distance
Learning Programs, dated June 30, 1999.
10.8[5] -- Agreement for Interactive Televideo Courses and
Distance Learning Programs between the Registrant and
Travelers Indemnity Company, dated July 24, 1998.
10.9[1] -- Agreement between the Registrant and Zurich Insurance
Company, U.S. Branch for the Offering of Interactive
Televideo Courses and Distance Learning Programs,
dated August 12, 1998.
10.11[6] -- Lease Agreement between the Registrant and Realty Co.
(doing business as Royal Realty), dated as of
December 15, 1998.
10.12[1] -- Employment Agreement between the Registrant and Dr.
Arol I. Buntzman, dated October 1, 1998.
II-3
<PAGE>
10.13[1] -- Employment Agreement between the Registrant and Dr.
John J. McGrath, dated October 1, 1998.
10.14[1] -- Employment Agreement between the Registrant and
Richard Goldenberg, dated October 1, 1998.
10.15 -- Intentionally omitted.
10.16[1] -- Employment Agreement between the Registrant and James
H. Mollitor, dated October 1, 1998.
10.17[1] -- Consulting Agreement between the Registrant and
Arthur H. Goldberg, dated March 4, 1998.
10.18[4] -- Consulting Agreement between the Registrant and
William R. Coda, dated May 10, 1998.
10.19 -- Intentionally omitted.
10.20[1] -- Chief Executive Officer Change in Control Agreement
between the Registrant and Dr. Arol I. Buntzman,
dated October 1, 1998.
10.21[1] -- Form of Indemnification Agreement.
10.22[5] -- Intentionally omitted.
10.23[4] -- ICS Network Systems Equipment Collocation and
Services Agreement, dated November 20, 1997.
10.24[4] -- Agreement between the Registrant and General
Reinsurance Corporation for the Offering of
Interactive Televideo Courses and Distance Learning
Programs, dated November 6, 1998.
+10.25[4] -- Agreement between the Registrant and Manhattan
College for the Offering of Interactive Video
Conferenced Courses, dated November 23, 1998.
10.26[4] -- Comarketing Agreements between AT&T Corp. and the
Registrant.
10.27[4] -- Tariff agreement between the Registrant and AT&T
Corp., dated in June 1998.
10.28[12] -- Agreement between Arol I. Buntzman and Richard and
Bonnie Goldenberg, dated March 1, 2000.
II-4
<PAGE>
10.29[12] -- Agreement between Arol I. Buntzman and John J.
McGrath, dated March 1, 2000.
10.30 -- Intentionally omitted.
10.31[6] -- Agreement between the Rochester City School District
and the Registrant, dated December 22, 1998.
10.32[6] -- National Agreement between Lockheed Martin
Corporation and the Registrant dated as of February
17, 1999.
+10.33[6] -- Educational Provider Agreement between Kaplan
Educational Centers, Inc. and Educational Video
Conferencing, Inc. dated March 23, 1999.
10.34[7] -- EVC and CWE Co-Marketing Agreement, dated May 21,
1999, between the Registrant and the Consortium for
Workers Education.
10.35[8] -- Video Conferencing and Telecommunications Services
Agreement, dated as of July 1, 1999, between the
Board of Education of the City School District of the
City of New York on behalf of Community School
District No. 10 and the Registrant.
10.36[8] -- Agreement between the Registrant and Atlantic
District Lutheran Church Missouri Synod for the
Offering of Interactive Televideo Courses, dated July
21, 1999.
10.37[8] -- Letter Agreement between Excite @Home Network and the
Registrant, dated July 26, 1999.
+10.38[8] -- Agreement between the Registrant and Concordia
College for the Offering of Interactive Video
Conferenced Courses, dated August 19, 1999.
+10.39(a)[8]-- Agreement, dated August 26, 1999, between We Media,
Inc. and the Registrant.
+10.39(b)[8]-- Agreement, dated September 22, 1999, between We
Media, Inc. and the Registrant.
+10.40[8] -- Co-Marketing Agreement, dated September 1, 1999,
between the Registrant and Bell Atlantic Network
Services, Inc.
+10.41[8] -- Agreement, dated September 1, 1999, between the
Registrant and Touro College and Touro University
College and Touro University International.
II-5
<PAGE>
+10.42[8] -- Agreement, between the Registrant and St. John's
University for the Offering of Interactive Video
Conferenced and Internet-Based Courses, dated
September 24, 1999.
10.43[9] -- Stock Purchase Agreement, dated as of January 14,
2000, among Bruce R. Kalisch, Interboro Holding, Inc.
and Interboro Institute, Inc.
10.44[9] -- Escrow Agreement, dated January 14, 2000, among Bruce
R. Kalisch, Interboro Holding, Inc. and
Fischbein Badillo Wagner Harding.
10.45[10] -- Securities Purchase Agreement, dated as of February
3, 2000, between Educational Video Conferencing, Inc.
and The Shaar Fund Ltd.
10.46[10] -- Registration Rights Agreement, dated as of February
3, 2000, between Educational Video Conferencing, Inc.
and The Shaar Fund Ltd.
++10.50 -- Agreement between Educational Video Conferencing,
Inc. and Golden Gate University for the Offering of
Interactive video conference courses, dated March 3,
2000.
10.51[12] -- License and services agreement between Educational
Video Conferencing, Inc. and Learningforce Inc. dated
as of October 18, 1999.
10.52[12] -- Educational Provider/Co-Marketing Agreement between
Educational Video Conferencing, Inc. and Computer
Generated Solutions, Inc. dated as of January 13,
2000.
10.53[12] -- Stock Subscription and Stockholders' Agreement, dated
as of November 29, 1999 among Educational Video
Conferencing, Inc., Visiocom Worldwide, S.A., the
individuals set forth in Exhibit A to such agreement,
and Visiocom USA Incorporated ("VUSA"), including
Exhibits.
23.1 -- Consent of Goldstein Golub Kessler LLP.
23.2 -- Consent of Fischbein Badillo Wagner Harding (included
in Exhibit 5.1).
24.1 Power of Attorney (set forth on page II-9).
99.1[9] -- Press Release of Educational Video Conferencing,
Inc., dated January 20, 2000.
II-6
<PAGE>
____________________________
* Numbers inside brackets indicate documents from which exhibits have been
incorporated by reference.
+ Confidential treatment has been granted with respect to the redacted
portions of this exhibit.
++ Confidential treatment has been requested with respect to the redacted
portions of this exhibit.
[1] Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, dated October 23, 1998, registration no. 333-66085.
[2] Incorporated by reference to Amendment No. 1, dated November 12, 1998, to
the Registrant's Form SB-2, Registration no. 333-66085.
[3] Incorporated by reference to Amendment No. 2, dated November 20, 1998, to
the Registrant's Form SB-2, Registration No. 333-66085.
[4] Incorporated by reference to Amendment No. 3, dated December 23, 1998, to
the Registrant's Form SB-2, Registration No. 333-66085.
[5] Incorporated by reference to Amendment No. 4, dated February 10, 1999, to
the Registrant's Form SB-2, Registration No. 333-66085.
[6] Incorporated by reference to Registrant's Form 10-QSB, for the quarter
ended March 31, 1999.
[7] Incorporated by reference to Registrant's Form 10-QSB, for the quarter
ended June 30, 1999.
[8] Incorporated by reference to Registrant's Form 10-QSB for the quarter ended
September 30, 1999.
[9] Incorporated by reference to the Registrant's Form 8-K dated January 14,
2000.
[10] Incorporated by reference to the Registrant's Form 8-K dated February 3,
2000.
[11] Incorporated by reference to the Registrant's Form 8-K/A dated March 3,
2000.
[12] Incorporated by referenced to the Registrant's Form 10-KSB for the year
ended December 31, 1999.
II-7
<PAGE>
Item 17. Undertakings
(a) The Registrant will:
(1) File during any period in which selling stockholders offer or sell
securities, a post-effective amendment to this registration statement to
include any additional or changed material information on the plan of
distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial
bona fide offering.
(3) File a post effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers
and controlling persons of the small business issuer pursuant to the
foregoing provisions, or otherwise, the small business issuer 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 small business issuer of expenses incurred
or paid by a director, officer or controlling person of the small business
issuer 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 small business issuer 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-8
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Yonkers, State of New York, on the 6th day of April,
2000.
EDUCATIONAL VIDEO CONFERENCING, INC.
By:/s/ Dr. Arol I. Buntzman
-------------------------------------------
Dr. Arol I. Buntzman, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below under the heading "Signature" constitutes and appoints Dr. Arol I.
Buntzman and John J. McGrath, or either of them, 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
or 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 attorneys-in-fact and
agents, each acting alone, 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 for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, each acting alone, 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, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
--------- ----- ----
/s/ Dr. Arol I. Buntzman
- -------------------------- Chairman of the Board and April 6, 2000
Dr. Arol I. Buntzman Chief Executive Officer
/s/ John J. McGrath
- -------------------------- President and Director April 6, 2000
Dr. John J. McGrath
/s/ Richard Goldenberg
- -------------------------- Chief Financial Officer, April 6, 2000
Richard Goldenberg Secretary and Director
(Principal Financial
and Accounting Officer)
/s/ Royce N. Flippen, Jr.
- ------------------------- Director April 6, 2000
Royce N. Flippin, Jr.
/s/ Philip M. Getter
- ------------------------- Director April 6, 2000
Philip M. Getter
- ------------------------- Director April , 2000
Arthur H. Goldberg
II-9
<PAGE>
EXHIBIT INDEX
Exhibit No.* Description of Document
- ------------ -----------------------
3.1[1] -- Certificate of Incorporation of the Registrant.
3.1.(a)[6] -- Certificate of Amendment to Certificate of
Incorporation.
3.2[6] -- Amended and Restated By-Laws of the Registrant.
3.3[1] -- Certificate of Merger of Educational Video
Conferencing, Inc. (a New York Corporation) into the
Registrant (a Delaware Corporation).
3.4[1] -- Certificate of Correction of the Certificate of
Incorporation of the Registrant.
3.5[10] -- Second Amended Certificate of Designation of
Series A 7.5% Convertible Preferred Stock of the
Registrant.
3.5(a)[11] -- Certificate of Correction of Second Amended
Certificate of Designation of Series A 7.5%
Convertible Preferred Stock of the Registrant.
4.1[1] -- Form of Common Stock Purchase Warrant issued to
investors in private placements and for services
provided in connection with such private placements.
4.2[1] -- Tayside Common Stock Purchase Warrant.
4.3[5] -- Adelphi Common Stock Purchase Warrant.
4.4[5] -- Form of Representative's Warrant Agreement (including
Form of Representative's Warrant).
4.5[5] -- Form of Common Stock Certificate.
4.6[5] -- Amended and Restated 1998 Incentive Stock Option
Plan of the Registrant.
4.7[9] -- Warrant Agreement, dated as of January 14, 2000,
between Educational Video Conferencing, Inc. and
Bruce R. Kalisch.
4.8[10] -- Common Stock Purchase Warrant, dated as of February
3, 2000, issued to The Shaar Fund Ltd.
E-1
<PAGE>
4.8[10] -- Form of Finders' Warrant (relating to the issuance of
warrants to purchase 3,870 shares of the Registrant's
common stock).
5.1 -- Opinion of Fischbein Badillo Wagner Harding.
+10.1[3] -- Agreement between the Registrant and Adelphi
University for the Offering of Interactive Televideo
Courses, dated May 13, 1997.
+10.2[2] -- Agreement between the Registrant and The College of
Insurance for the Offering of Interactive Televideo
Courses, dated September 16, 1997.
+10.3[2] -- Agreement between the Registrant and Mercy College
for the Offering of Interactive Video Conferenced and
Computer Courses, dated March 10, 1998.
10.4[1] -- Agreement between the Registrant and Reliance
National for the Offering of Interactive Televideo
Courses and Distance Learning Programs, dated October
7, 1998.
10.5[1] -- Agreement between the Registrant and Citibank, dated
May 20, 1997.
10.6[1] -- Agreement between the Registrant and American
International Group, dated May 21, 1997.
10.7[1] -- Agreement between the Registrant and Merrill Lynch
for the Offering of Interactive Televideo Courses and
Distance Learning Programs, dated June 3, 1998.
10.7(a)[8] -- Agreement between the Registrant and Merrill Lynch,
Pierce, Fenner & Smith Incorporated for the Offering
of Interactive Televideo Courses and Distance
Learning Programs, dated June 30, 1999.
10.8[5] -- Agreement for Interactive Televideo Courses and
Distance Learning Programs between the Registrant and
Travelers Indemnity Company, dated July 24, 1998.
10.9[1] -- Agreement between the Registrant and Zurich Insurance
Company, U.S. Branch for the Offering of Interactive
Televideo Courses and Distance Learning Programs,
dated August 12, 1998.
10.11[6] -- Lease Agreement between the Registrant and Realty Co.
(doing business as Royal Realty), dated as of
December 15, 1998.
10.12[1] -- Employment Agreement between the Registrant and Dr.
Arol I. Buntzman, dated October 1, 1998.
E-2
<PAGE>
10.13[1] -- Employment Agreement between the Registrant and Dr.
John J. McGrath, dated October 1, 1998.
10.14[1] -- Employment Agreement between the Registrant and
Richard Goldenberg, dated October 1, 1998.
10.15 -- Intentionally omitted.
10.16[1] -- Employment Agreement between the Registrant and James
H. Mollitor, dated October 1, 1998.
10.17[1] -- Consulting Agreement between the Registrant and
Arthur H. Goldberg, dated March 4, 1998.
10.18[4] -- Consulting Agreement between the Registrant and
William R. Coda, dated May 10, 1998.
10.19 -- Intentionally omitted.
10.20[1] -- Chief Executive Officer Change in Control
Agreement between the Registrant and Dr. Arol I.
Buntzman, dated October 1, 1998.
10.21[1] -- Form of Indemnification Agreement.
10.22[5] -- Intentionally omitted.
10.23[4] -- ICS Network Systems Equipment Collocation and
Services Agreement, dated November 20, 1997.
10.24[4] -- Agreement between the Registrant and General
Reinsurance Corporation for the Offering of
Interactive Televideo Courses and Distance Learning
Programs, dated November 6, 1998.
+10.25[4] -- Agreement between the Registrant and Manhattan
College for the Offering of Interactive Video
Conferenced Courses, dated November 23, 1998.
10.26[4] -- Co-marketing Agreements between AT&T Corp. and the
Registrant.
10.27[4] -- Tariff agreement between the Registrant and AT&T
Corp., dated in June 1998.
10.28[12] -- Agreement between Arol I. Buntzman and Richard and
Bonnie Goldenberg, dated March 1, 2000.
E-3
<PAGE>
10.29[12] -- Agreement between Arol I. Buntzman and John J.
McGrath, dated March 1, 2000.
10.30 -- Intentionally omitted.
10.31[6] -- Agreement between the Rochester City School District
and the Registrant, dated December 22, 1998.
10.32[6] -- National Agreement between Lockheed Martin
Corporation and the Registrant dated as of February
17, 1999.
+10.33[6] -- Educational Provider Agreement between Kaplan
Educational Centers, Inc. and Educational Video
Conferencing, Inc. dated March 23, 1999.
10.34[7] -- EVC and CWE Co-Marketing Agreement, dated May 21,
1999, between the Registrant and the Consortium for
Workers Education.
10.35[8] -- Video Conferencing and Telecommunications Services
Agreement, dated as of July 1, 1999, between the
Board of Education of the City School District of the
City of New York on behalf of Community School
District No. 10 and the Registrant.
10.36[8] -- Agreement between the Registrant and Atlantic
District Lutheran Church Missouri Synod for the
Offering of Interactive Televideo Courses, dated July
21, 1999.
10.37[8] -- Letter Agreement between Excite @Home Network and the
Registrant, dated July 26, 1999.
+10.38[8] -- Agreement between the Registrant and Concordia
College for the Offering of Interactive Video
Conferenced Courses, dated August 19, 1999.
+10.39(a)[8]-- Agreement, dated August 26, 1999, between We Media,
Inc. and the Registrant.
+10.39(b)[8]-- Agreement, dated September 22, 1999, between We
Media, Inc. and the Registrant.
+10.40[8] -- Co-Marketing Agreement, dated September 1, 1999,
between the Registrant and Bell Atlantic Network
Services, Inc.
+10.41[8] -- Agreement, dated September 1, 1999, between the
Registrant and Touro College and Touro University
College and Touro University International.
E-4
<PAGE>
+10.42[8] -- Agreement, between the Registrant and St. John's
University for the Offering of Interactive Video
Conferenced and Internet-Based Courses, dated
September 24, 1999.
10.43[9] -- Stock Purchase Agreement, dated as of January 14,
2000, among Bruce R. Kalisch, Interboro Holding, Inc.
and Interboro Institute, Inc.
10.44[9] -- Escrow Agreement, dated January 14, 2000, among Bruce
R. Kalisch, Interboro Holding, Inc. and
Fischbein Badillo Wagner Harding.
10.45[10] -- Securities Purchase Agreement, dated as of February
3, 2000, between Educational Video Conferencing, Inc.
and The Shaar Fund Ltd.
10.46[10] -- Registration Rights Agreement, dated as of February
3, 2000, between Educational Video Conferencing, Inc.
and The Shaar Fund Ltd.
++10.50 -- Agreement between Educational Video Conferencing,
Inc. and Golden Gate University for the Offering of
Interactive video conference courses, dated March 3,
2000.
10.51[12] -- License and services agreement between Educational
Video Conferencing, Inc. and Learningforce Inc. dated
as of October 18, 1999.
10.52[12] -- Educational Provider/Co-Marketing Agreement between
Educational Video Conferencing, Inc. and Computer
Generated Solutions, Inc. dated as of January 13,
2000.
10.53[12] -- Stock Subscription and Stockholders' Agreement, dated
as of November 29, 1999 among Educational Video
Conferencing, Inc., Visiocom Worldwide, S.A., the
individuals set forth in Exhibit A to such agreement,
and Visiocom USA Incorporated ("VUSA"), including
Exhibits.
23.1 -- Consent of Goldstein Golub Kessler LLP.
23.2 -- Consent of Fischbein Badillo Wagner Harding (included
in Exhibit 5.1).
24.1 Power of Attorney (set forth on page II-9).
99.1[9] -- Press Release of Educational Video Conferencing,
Inc., dated January 20, 2000.
E-5
<PAGE>
* Numbers inside brackets indicate documents from which exhibits have been
incorporated by reference.
+ Confidential treatment has been granted with respect to the redacted
portions of this exhibit.
++ Confidential treatment has been requested with respect to the redacted
portions of this exhibit.
[1] Incorporated by reference to the Registrant's Registration Statement on
Form SB-2, dated October 23, 1998, registration no. 333-66085.
[2] Incorporated by reference to Amendment No. 1, dated November 12, 1998, to
the Registrant's Form SB-2, Registration no. 333-66085.
[3] Incorporated by reference to Amendment No. 2, dated November 20, 1998, to
the Registrant's Form SB-2, Registration No. 333-66085.
[4] Incorporated by reference to Amendment No. 3, dated December 23, 1998, to
the Registrant's Form SB-2, Registration No. 333-66085.
[5] Incorporated by reference to Amendment No. 4, dated February 10, 1999, to
the Registrant's Form SB-2, Registration No. 333-66085.
[6] Incorporated by reference to Registrant's Form 10-QSB, for the quarter
ended March 31, 1999.
[7] Incorporated by reference to Registrant's Form 10-QSB, for the quarter
ended June 30, 1999.
[8] Incorporated by reference to Registrant's Form 10-QSB for the quarter ended
September 30, 1999.
[9] Incorporated by reference to the Registrant's Form 8-K dated January 14,
2000.
[10] Incorporated by reference to the Registrant's Form 8-K dated February 3,
2000.
[11] Incorporated by reference to the Registrant's Form 8-K/A dated March 3,
2000.
[12] Incorporated by referenced to the Registrant's Form 10-KSB for the year
ended December 31, 1999.
E-6
EXHIBIT 5.1
April 6, 2000
LETTERHEAD FISCHBEIN BADILLO WAGNER HARDING
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Educational Video Conferencing, Inc.
Registration Statement on Form S-3
to register 2,640,353 shares of EVCI common stock
Ladies and Gentlemen:
As counsel to Educational Video Conferencing, Inc., a Delaware
corporation ("EVCI"), we have been requested to render this opinion for filing
as Exhibit 5 to EVCI's Registration Statement on Form S-3 (the "Registration
Statement"). Each term used herein shall have the meaning specified in the
Registration Statement unless otherwise defined herein.
The Registration Statement covers 2,640,353 shares of EVCI's common
stock, in an offering to register the resale of shares by selling stockholders.
The 2,640,353 shares include 1,051,130 shares that are outstanding (the
"Outstanding Shares"). The remaining 1,590,223 shares are purchasable from EVCI
upon conversion of EVCI's Series A 7.5% Convertible Preferred Stock and upon the
exercise of warrants and options (the "Unissued Shares").
We have examined the originals or photocopies or certified copies of
such records of EVCI and other documents as we have deemed necessary or
appropriate for the purpose of this opinion. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as certified copies or photocopies and the authenticity of the
originals of such latter documents.
<PAGE>
Securities and Exchange Commission
April 6, 2000
Page 2
Based on the foregoing, we are of the opinion that the (i) Outstanding
Shares have been legally and validly issued and are fully paid and nonassessable
and (ii) Unissued Shares will be, when issued and or paid for, legally and
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Fischbein Badillo Wagner Harding
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors
Educational Video Conferencing, Inc.
We hereby consent to the incorporation by reference in this Prospectus
constituting part of the Registration Statement of Educational Video
Conferencing, Inc. on this Form S-3 of our report dated January 28, 2000, except
for Note 12, as to which the date is February 3, 2000, on the financial
statements of Educational Video Conferencing, Inc. as of December 31, 1999 and
1998 and for the years then ended appearing in the annual report on Form 10-KSB
of Educational Video Conferencing, Inc. for the year ended December 31, 1999. We
also consent to the reference of our firm under the caption "Experts" contained
in such Registration Statement.
/s/ Goldstein Golub Kessler LLP
GOLDSTEIN GOLUB KESSLER LLP
New York, New York
April 6, 2000
