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Registration No. 333-
As filed with the Securities and Exchange Commission on August 26, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Net2Phone, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 22-3559037
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(State of Incorporation) (I.R.S. Employer Identification No.)
171 Main Street
Hackensack, New Jersey 07601
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(Address of Principal Executive Offices, Including Zip Code)
Amended and Restated 1999 Stock Option and Incentive Plan of Net2Phone, Inc.
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(Full Title of the Plan)
Howard S. Balter
Chief Executive Officer
Net2Phone, Inc.
171 Main Street
Hackensack, New Jersey 07601
(201) 907-5304
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(Name, Address and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Ira Greenstein, Esq.
Morrison & Foerster LLP
1290 Avenue of the Americas
New York, New York 10104
(212) 468-8000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered(1) Registered(1) Per Share (2) Price (2) Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value 9,569,782 $26.94 $257,809,927 $71,671
$.01 per
share
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</TABLE>
(1) Includes 9,569,782 shares to be registered under the Registrant's Amended
and Restated 1999 Stock Option and Incentive Plan, plus such additional
indeterminate number of shares of the Common Stock as may be issuable
pursuant to certain antidilution adjustment provisions thereof.
(2) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, based on the average of the high and low prices of the
Common Stock on the Nasdaq National Market on August 19, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents By Reference.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Net2Phone, Inc., a Delaware corporation
(the "Company"), pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are incorporated by reference in this registration
statement.
(a) The description of the common stock, par value $.01 per share (the
"Common Stock"), of the Company set forth as Item 1 under the caption
"Description of Securities" in the Company's Registration Statement on Form
8-A, dated July 20, 1999, filed pursuant to Section 12(g) of the Exchange
Act and declared effective by the Commission on July 29, 1999, including
any amendment or report filed for the purpose of updating such information.
(b) The Registrant's Prospectus filed with the Commission pursuant to Rule
424(b) on July 30, 1999.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment, which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein 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 which
also is incorporated or 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the Common Stock will be passed on by
Morrison & Foerster LLP.
Item 6. Indemnification of Directors and Officers.
Reference is made to Section 145 of the Delaware General Corporation Law,
which provides for indemnification of directors, officers and other employees in
certain circumstances, and to Section 102(b)(7) of the Delaware General
Corporation Law, which provides for the elimination or limitation of the
personal liability for monetary damages of directors under certain
circumstances. Article Sixth of the Company's certificate of incorporation, as
amended and restated, eliminates the personal liability for monetary damages of
directors under certain circumstances. The Company's bylaws provide
indemnification to our directors and officers to the fullest extent permitted by
the Delaware General
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Corporation Law for, among other things, liabilities for judgments in and
settlements of lawsuits and other proceedings and for the advance and payment of
fees and expenses reasonably incurred by the director or officer in defense of
any such lawsuit or proceeding.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibits 3.3 and 3.4 to the
Registration Statement on Form S-1 of the Company (File No. 333-
78713)).
4.2 By-Laws of the Company (incorporated by reference to Exhibit 3.2
to the Registration Statement on Form S-1 of the Company (File
No. 333-78713)).
*5.1 Legal Opinion of Morrison & Foerster LLP.
*23.1 Consent of Morrison & Foerster LLP. (included in Exhibit 5.1
hereto).
*23.2 Consent of Ernst & Young LLP.
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* Filed herewith.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8, and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Hackensack, State of New Jersey, on this 26th day of
August, 1999.
NET2PHONE, INC.
By /s/ Howard S. Balter
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Howard S. Balter
Chief Executive Officer
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.
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<CAPTION>
Signature Titles Date
--------- ------ ----
<S> <C> <C>
/s/ Clifford M. Sobel Chairman of the Board August 26, 1999
- ----------------------------
Clifford M. Sobel
/s/ Howard S. Balter Chief Executive Officer and Director August 26, 1999
- ---------------------------- (Principal Executive Officer)
Howard S. Balter
/s/ Ilan M. Slasky Chief Financial Officer (Principal August 26, 1999
- ---------------------------- Accounting and Financial Officer)
Ilan M. Slasky
/s/ James R. Mellor Director August 26, 1999
- ----------------------------
James R. Mellor
/s/ Howard S. Jonas Director August 26, 1999
- ----------------------------
Howard S. Jonas
/s/ Gary E. Rieschel Director August 26, 1999
- ----------------------------
Gary E. Rieschel
/s/ James A. Courter Director August 26, 1999
- ----------------------------
James A. Courter
/s/ Stephen A. Oxman Director August 26, 1999
- ----------------------------
Stephen A. Oxman
/s/ Jesse P. King Director August 26, 1999
- ----------------------------
Jesse P. King
</TABLE>
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EXHIBIT 5.1
[Morrison & Foerster LLP Letterhead]
August 25, 1999
Net2Phone, Inc.
171 Main Street
Hackensack, New Jersey 07601
Re: Net2Phone, Inc. - Registration Statement
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Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
executed by you on August 26, 1999, and to be filed with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of an aggregate of 9,569,782 shares of your common stock,
$0.01 par value (the "Common Stock"), which will be issuable under the Amended
and Restated 1999 Stock Option and Incentive Plan (the "Plan").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plan and the authorization of the issuance of the shares of Common Stock under
the Plan (the "Plan Shares") and such documents as we have deemed necessary to
render this opinion.
Based upon the foregoing, it is our opinion that the Plan Shares, when
issued and outstanding pursuant to the terms of the Plan, will be validly
issued, fully paid and non-assessable shares of Common Stock.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Net2Phone, Inc. ("Net2Phone") for the registration of 9,569,782
shares of its common stock pertaining to its Amended and Restated 1999 Stock
Option and Incentive Plan, of our report dated May 11, 1999 (except for Note 9,
as to which the date is June 25, 1999) with respect to the financial statements
of Net2Phone included in its Prospectus dated July 29, 1999, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
August 26, 1999
