As filed with the Securities and Exchange Commission on April 29, 1999
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CT COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
NORTH CAROLINA
(State or other jurisdiction
of incorporation or organization)
56-1837282
(I.R.S. Employer Identification No.)
68 CABARRUS AVENUE, EAST
CONCORD, NORTH CAROLINA
(Address of Principal Executive Offices)
28025
(Zip Code)
CT COMMUNICATIONS, INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
BARRY R. RUBENS
CT COMMUNICATIONS, INC.
68 CABARRUS AVENUE, EAST
CONCORD, NORTH CAROLINA 28025
(Name and address of agent for service)
(704) 722-2404
(Telephone number, including area code, of agent for service)
COPIES TO:
R. DOUGLAS HARMON
MAYER, BROWN & PLATT
100 NORTH TRYON STREET, SUITE 2400
CHARLOTTE, NORTH CAROLINA 28202
(704) 377-7111
(704) 377-2033 (FACSIMILE)
CALCULATION OF REGISTRATION FEE
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AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES REGISTERED AGGREGATE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF REGISTRATION FEE
TO BE REGISTERED PER SHARE(1) PRICE(1)
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<S> <C> <C>
COMMON STOCK 150,000 shares $39.50 $5,925,000 $1,648
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(1) Estimated solely for the purpose of determining the registration fee
based on the average of the high and low trading price on April 26, 1999 as
reported by the Nasdaq National Market.
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PART I
INFORMATION REQUIRED IN
THE SECTION 10(A) PROSPECTUS
The documents constituting the prospectus of CT Communications, Inc. with
respect to this registration statement are kept on file at our offices. We will
provide without charge to participants in the CT Communications, Inc. 1999
Employee Stock Purchase Plan, upon their written or oral request, a copy of the
documents constituting the prospectus. Written requests should be directed to
Barry R. Rubens, Senior Vice President, CT Communications, Inc., 68 Cabarrus
Avenue, East, Post Office Box 227, Concord, North Carolina 28026-0227. Telephone
requests may be directed to (704) 722-2404.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by CT
Communications, Inc. (the "Company" or "Registrant") with the Securities and
Exchange Commission ("Commission"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, filed on March 29, 1999; and
(b) The description of the common stock of the Company (the "Common
Stock") contained in the section entitled "Description of
Registrant's Securities to be Registered" from the Company's
registration statement on Form 8-A dated January 28, 1999, including
any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
("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 herein by
reference and shall be deemed a part hereof from the date of filing of such
documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has adopted a bylaw, as permitted by the North Carolina
Business Corporation Act ("NCBCA"), which provides that, in addition to the
indemnification of directors and officers otherwise provided by the NCBCA, the
Company must, under certain circumstances, indemnify current or former directors
or officers against any and all liability and litigation expense, including
reasonable attorneys' fees, arising out of their status or activities as
directors or officers, except for liability or litigation expense incurred on
account of activities that were at the time known or believed by such director
or officer to be clearly in conflict with the best interests of the corporation.
Pursuant to such bylaw, the Company may also maintain insurance on behalf of its
directors and officers against liability asserted against such persons in such
capacity whether or not such directors or officers have the right to
indemnification pursuant to the bylaw or otherwise.
In addition to the above-described indemnification provisions, Sections
55-8-50 through 55-8-58 of the NCBCA contain provisions prescribing the extent
to which directors and officers shall or may be indemnified. Section 55-8-51 of
the NCBCA permits a corporation, with certain exceptions, to indemnify a present
or former director against liability if (i) he conducted himself in good faith,
(ii) he reasonably believed (x) that his conduct in his official capacity with
the corporation was in its best interests and (y) in all other cases his conduct
was at least not opposed to the corporation's best interest, and (iii) in the
case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. A corporation may not indemnify him in connection with a
proceeding by or in the right of the corporation in which he was adjudged liable
to the corporation or in connection with a proceeding charging improper personal
benefit to him. The above standard of conduct is
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determined by the Board of Directors, or a committee or special legal counsel or
the shareholders as prescribed in Section 55-8-55. Sections 55-8-52 and 55-8-56
of the NCBCA require a corporation to indemnify a director or officer in the
defense of any proceeding to which he was a party against reasonable expenses
when he is wholly successful in his defense, unless the articles of
incorporation provide otherwise. Upon application, the court may order
indemnification of the director or officer if he is adjudged fairly and
reasonably so entitled under Section 55-8-54.
The Articles of Incorporation of the Company provide that, to the
fullest extent permitted by the NCBCA, a director of the Company shall not be
personally liable to the Company, its shareholders or otherwise for monetary
damages for breach of his duty as a director. This provision precludes any claim
by the shareholders of the Company for monetary damages based on a breach of
duty of directors, with the following exceptions under the NCBCA: (i) acts or
omissions that such director at the time of such breach knew or believed were
clearly in conflict with the best interests of the corporation, (ii) certain
unlawful distributions, including unlawful redemptions of shares, (iii) any
transaction from which such director derived an improper personal benefit or
(iv) acts or omissions occurring prior to the effectiveness of the provision on
April 27, 1988.
ITEM 8. EXHIBITS.
See Index to Exhibits, which is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 ("Securities Act");
(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; provided that, notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) above do not
apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
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3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to under Item 6, 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 or paid 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 Concord, State of North Carolina, on April 28, 1999.
CT COMMUNICATIONS, INC.
By/s/ MICHAEL R. COLTRANE
---------------------------------------
Michael R. Coltrane
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes any
Authorized Officer acting alone to execute in the name of such person and in the
capacity indicated below, and to file, any amendments to this registration
statement that any Authorized Officer deems necessary or advisable to enable the
Registrant to comply with the Securities Act of 1933, as amended, and any rules,
regulations, and requirements of the Securities and Exchange Commission in
respect thereof, and to take any other action on behalf of such person that any
Authorized Officer deems necessary or desirable in connection herewith. The term
"Authorized Officer" as applied with respect to any action taken pursuant to
this authorization means (i) any person who is the Registrant's President and
Chief Executive Officer or Senior Vice President and Chief Financial Officer at
the time such action shall be taken and (ii) any other officer of the Registrant
or of a wholly owned subsidiary of the Registrant who shall be authorized by any
person identified in clause (i) to act as an Authorized Officer for purposes of
this paragraph.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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<S> <C> <C>
Signature Title Date
--------- ----- ----
/s/ L.D. COLTRANE, III Chairman of the Board April 28, 1999
- ----------------------------- and Director
L.D. Coltrane, III
/s/ MICHAEL R. COLTRANE President, Chief Executive April 28, 1999
- ----------------------------- Officer and Director
Michael R. Coltrane (Principal Executive Officer)
/s/ BARRY R. RUBENS Senior Vice President, Treasurer April 28, 1999
- ----------------------------- and Chief Financial Officer
Barry R. Rubens (Principal Financial and Principal
Accounting Officer)
/s/ JOHN R. BOGER, JR. Director April 28, 1999
- -----------------------------
John R. Boger, Jr.
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Signature Title Date
--------- ----- ----
/s/ O. CHARLIE CHEWNING, JR. Director April 28, 1999
- -----------------------------
O. Charlie Chewning, Jr.
/s/ WILLIAM A. COLEY Director April 28, 1999
- -----------------------------
William A. Coley
/s/ SAMUEL E. LEFTWICH Director April 28, 1999
- -----------------------------
Samuel E. Leftwich
/s/ JERRY H. McCLELLAN Director April 28, 1999
- -----------------------------
Jerry H. McClellan
Director April , 1999
- -----------------------------
Ben F. Mynatt
/s/ PHIL W. WIDENHOUSE Director April 28, 1999
- -----------------------------
Phil W. Widenhouse
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INDEX TO EXHIBITS
Exhibit
Number Description of Document
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5.1 Opinion of Mayer, Brown & Platt as to the legality of securities
being registered
23.1 Consent of KPMG LLP, independent public accountants
23.2 Consent of Mayer, Brown & Platt (included in its opinion filed as
Exhibit 5.1 hereto)
24.1 Power of Attorney (included with signature page to the registration
statement)
99.1 CT Communications, Inc. 1999 Employee Stock Purchase Plan
(incorporated by reference to Appendix A attached to the
Registrant's definitive proxy statement filed on March 29, 1999)
Exhibit 5.1
April 28, 1999
CT Communications, Inc.
68 Cabarrus Avenue, East
Concord, North Carolina 28025
Re: CT Communications, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to CT Communications, Inc., a North Carolina
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration Statement")
relating to the shares of common stock (the "Common Stock") of the Company
issuable pursuant to the Company's 1999 Employee Stock Purchase Plan (the
"Plan"). In this connection, we have examined such corporate and other records,
instruments, certificates and documents as we considered necessary to enable us
to express this opinion.
Based on the foregoing, it is our opinion that the shares of Common
Stock issuable pursuant to the Plan have been duly authorized for issuance and,
when sold pursuant to the Plan, will be validly issued, fully paid, and
non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Interests
of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
/s/ MAYER, BROWN & PLATT
Mayer, Brown & Platt
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
CT Communications, Inc.:
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of CT Communications, Inc. of our report dated March 5, 1999 relating
to the consolidated balance sheets of CT Communications, Inc. and subsidiaries
as of December 31, 1998 and 1997 and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1998, and related schedule, which report is
incorporated by reference in the December 31, 1998 Annual Report on Form 10-K of
CT Communications, Inc.
/s/ KPMG LLP
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Charlotte, North Carolina KPMG LLP
April 29, 1999
