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As filed with the Securities and Exchange Commission on November 3, 2000
(No. 333-93259)
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Capsule Communications, Inc.
(Exact Name of Registrant as Specified in Charter)
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<S> <C>
Delaware 22-3055962
(State or Other Jurisdiction (I.R.S. Employer Identification Number)
of Incorporation or Organization)
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2 Greenwood Square
3331 Street Road, Suite 275
Bensalem, Pennsylvania 19020
(Address, including zip code, of registrant's principal executive offices)
US WATS, Inc. 1999 Stock Option Plan
(Full Title of the Plan)
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David B. Hurwitz
President and Chief Executive Officer
Capsule Communications, Inc.
2 Greenwood Square
3331 Street Road, Suite 275
Bensalem, Pennsylvania 19020
(215) 244-3433
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Michael H. Friedman, Esq.
Pepper Hamilton LLP
3000 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103-2799
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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>
See Below (1) N/A N/A N/A N/A
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(1) No additional securities are to be registered and registration fees were
paid upon the filing of the original Registration Statement No. 333-93259.
Therefore, no further registration fee is required.
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EXPLANATORY NOTE
This Post-Effective Amendment No.1 to Registration Statement No. 333-93259
on Form S-8 (the "Registration Statement") is being filed pursuant to Rule 414
under the Securities Act by Capsule Communications, Inc., a Delaware corporation
(the "Registrant"), which is the successor to US WATS, Inc., a New York
corporation, following a reincorporation merger (the "Merger"). The Merger was
effected through the merger of US WATS with and into the Registrant, with the
result that the Registrant has become the surviving corporation and successor
issuer to US WATS. Immediately prior to the Merger, the Registrant had no assets
or liabilities other than nominal assets or liabilities. In connection with the
Merger, the Registrant acquired all of the assets and assumed all of the
liabilities of US WATS.
In connection with the Merger, each outstanding share of common stock of US
WATS was converted into one common share of the Registrant. In addition, the
Registrant assumed US WATS' various stock compensation plans, including US WATS'
1999 Non-Qualified Stock Option Plan (the "Plan").
In accordance with Rule 414(d) of the Securities Act, the Registrant, as
successor issuer to US WATS, hereby expressly adopts the Registration Statement
as its own for all purposes under the Securities Act of 1933, as amended (the
"Securities Act") and the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The applicable registration fees were paid at the time of the original
filing of the Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
*Information required to be contained in Part I of this Registration
Statement is omitted in accordance with Rule 428 under the Securities Act and
the introductory Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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The Securities and Exchange Commission allows us to "incorporate by
reference" information we file with it, which means that we can disclose
important information by referring to those documents. The information
incorporated by reference is considered to be a part of this registration
statement, and information that we file later with the Securities and Exchange
Commission will automatically update and, if applicable, supersede this
information. We incorporate by reference the documents listed below:
(a) US WATS' Annual Report on Form 10-K for the year ended December
31, 1999;
(b) Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2000 and June 30, 2000;
(c) Our Current Report on Form 8-K12g3 filed on May 3, 2000;
(d) Our Current Reports on Form 8-K filed on May 24, 2000 and July
11, 2000; and
(e) All documents filed by us pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this registration
statement and prior to the filing of a post-effective amendment,
which indicates that all securities offered pursuant to this
registration statement have been sold or which deregisters all
securities then remaining unsold.
Item 4. Description of Securities
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Our authorized capital stock consists of 100,000,000 shares of common
stock, par value $.001 per share, and 2,000,000 shares of preferred stock, par
value $.01 per share, the rights, preferences and privileges of which may be
established from time to time by our board of directors. As of October 25, 2000,
22,448,444 shares of our common stock were outstanding and no shares of our
preferred stock were outstanding.
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Common Stock
Each holder of record of common stock is entitled to one vote for each
share on all matters properly submitted to the stockholders for their vote. Our
certificate of incorporation does not allow cumulative voting for the election
of directors, which means that the holders of a majority of the shares voted can
elect all the directors then standing for election. Subject to preferences that
may be applicable to any preferred stock outstanding at the time, holders of our
common stock are entitled to receive ratable dividends, if any, as may be
declared from time to time by our board of directors out of funds legally
available for that purpose. In the event of our liquidation, dissolution or
winding up, holders of common stock would be entitled to share in our assets
remaining after the payment of liabilities and liquidation preferences on any
outstanding preferred stock. Holders of our common stock have no preemptive or
conversion rights or other subscription rights and there are no redemption or
sinking fund provisions applicable to the common stock. All outstanding shares
of common stock are, and the shares of common stock offered by us in this
offering will be, when issued and paid for, fully paid and non-assessable. The
rights, preferences and privileges of holders of common stock may be adversely
affected by the rights of the holders of shares of any series of preferred stock
that we may authorize and issue in the future.
Preferred Stock
The board of directors is authorized, subject to Delaware law, without
stockholder approval, from time to time to issue up to an aggregate of 2,000,000
shares of preferred stock in one or more series. The board of directors may fix
the rights, preferences and privileges of the shares of each series and any
qualifications, limitations or restrictions. Issuance of preferred stock, while
providing desirable flexibility in connection with possible acquisitions and
other corporate purposes, could have the effect of making it more difficult for
a third party to acquire, or of discouraging a third party from attempting to
acquire, a majority of our outstanding voting stock. We have no present plans to
issue any shares of preferred stock.
Certificate of Incorporation and By-law Provision
Under our bylaws, only a majority of the board of directors or the
President may call special meetings of stockholders. The stockholders may not
call a special meeting.
The foregoing provisions could have the effect of delaying until the next
stockholders' meeting stockholder actions which are favored by the holders of a
majority of our outstanding voting securities. These provisions may also
discourage another person or entity from making a tender offer for our common
stock because such person or entity, even if it acquired a majority of our
outstanding voting securities, would be able to take action as a stockholder,
such as electing new directors or approving a merger, only at a duly called
stockholders meeting.
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Delaware Anti-Takeover Law
We are not subject to the provisions of Section 203 of the Delaware
General Corporation Law regulating corporate takeovers as our certificate of
incorporation contains an express provision declaring our election to opt-out of
Section 203.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Liberty
Transfer.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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The General Corporation Law of Delaware permits a corporation to
provide in its certificate of incorporation a provision limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, except with respect to: (a)
any breach of the director's duty of loyalty; (b) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law; (c)
the payment of certain unlawful dividend or distributions; or (d) any
transaction from which the director derived an improper personal benefit.
Capsule's Certificate of Incorporation contains such a provision.
Capsule's Bylaws provide for indemnification of its directors and
officers to the maximum extent permitted by applicable law. The General
Corporation Law of Delaware allows for indemnification of directors and officers
in connection with derivative and non-derivative actions. However, the person to
be indemnified must have acted in good faith and in a manner that the person
reasonably believed to be consistent with the best interests of the corporation.
Also, with respect to derivative actions where the person is adjudged to be
liable to the corporation, indemnification is not permitted unless a court
determines that the person is fairly entitled to such indemnification.
Item 7. Exemption from Registration Claimed
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Not Applicable.
Item 8. Exhibits
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See Exhibit Index, which is incorporated herein by reference.
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Item 9. Undertakings
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(a) Capsule 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 and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 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 (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) that, for purposes of determining any liability under the
Securities Act of 1933, each filing of Capsule's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
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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; and
(c) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of Capsule pursuant to the foregoing provisions, or otherwise, Capsule
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable; in the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of Capsule 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, Capsule will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Capsule
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 township of Bensalem,
Commonwealth of Pennsylvania on this 3rd day of November, 2000.
Capsule Communications, Inc.
By: /s/ David B. Hurwitz
__________________________________
David B. Hurwitz
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of David B. Hurwitz and James M. Rossi his
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective 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 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, as fully as to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agent or either of them, or their 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 Post-
effective Amendment to the Registration Statement has been signed below by the
following persons on behalf of Capsule and in the capacities and on the dates
indicated.
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Signature Title Date
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/s/ David B. Hurwitz President and Chief Executive Officer November 3, 2000
_____________________ (Principal Executive Officer)
David B. Hurwitz
/s/ Artie Regan Director and Secretary October 31, 2000
____________________
Artie Regan
/s/ Walt Anderson Director November 3, 2000
____________________
Walt Anderson
/s/ Dominic J. Romano Director October 31, 2000
_____________________
Dominic J. Romano
/s/ Michael McAnulty Chief Financial Officer November 3, 2000
_____________________ (Principal Financial and Accounting Officer)
Michael McAnulty
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Index of Exhibits
Exhibit No. Description
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2* Agreement and Plan of Merger
5 Opinion of Pepper Hamilton LLP
23.1 Consent of Deloitte & Touche LLP
23.2 The consent of counsel is contained in the opinion
filed as Exhibit 5 hereto
24 Power of Attorney (included on the signature page
to the registration statement)
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*Previously filed as an exhibit to US WATS, Inc.'s Definitive Schedule 14A filed
with the Commission on October 25, 1999.
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