As filed with the Securities and Exchange Commission on November 4, 1999
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
NCT GROUP, INC.
(formerly Noise Cancellation Technologies, Inc.)
(Exact name of Registrant as specified in Charter)
Delaware 59-2501025
(State or Other Jurisdiction (I.R.S. Employer
Of Incorporation or Identification No.)
Organization)
1025 West Nursery Road, Linthicum, Maryland 21090
(410) 636-8700
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
Noise Cancellation Technologies, Inc. Stock Incentive Plan
(Full title of the Plan)
CY E. HAMMOND
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER
NCT GROUP, INC.
1025 WEST NURSERY ROAD, SUITE 120
LINTHICUM, MARYLAND 21090
(410) 636-8700
(Name and Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies of all communications and notices to:
WILLIAM P. O'NEILL, ESQ.
CROWELL & MORING LLP
1001 PENNSYLVANIA AVE, NW
WASHINGTON, DC 20004
(202) 624-2500
<PAGE>
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE PRICE FEE
- ----------------- --------------- -------------- ------------ ------------
COMMON STOCK 18,012,655 SHARES $0.4848 (2) $8,732,535 $2,427.64
COMMON STOCK 1,987,345 SHARES $0.176 (3) $ 349,773 $ 97.24
---------- ---------- ---------
20,000,000 SHARES $9,082,308 $2,524.88
(1) This registration statement also covers such additional shares of common
stock as may be issuable pursuant to adjustments deemed necessary or
equitable by the Board of Directors of the registrant upon changes in
capitalization, as provided in Section 11 of the Noise Cancellation
Technologies, Inc. Stock Incentive Plan.
(2) Weighted average exercise price for options granted under the Stock
Incentive Plan. Fee calculated pursuant to Rule 457(h).
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based on the average of the high and low prices
for the common stock as reported on the NASDAQ OTC Bulletin Board on
November 2, 1999.
STATEMENT OF INCORPORATION BY REFERENCE
A registration statement on Form S-8 (File No. 33-64792) was filed with
the Securities and Exchange Commission on June 22, 1993 covering the
registration of 6,000,000 shares initially authorized for issuance under the
Noise Cancellation Technologies, Inc. Stock Incentive Plan (the "1992 Plan"). A
registration statement on Form S-8 (File No. 333-11213) was filed with the
Securities and Exchange Commission on August 30, 1996 to register an additional
4,000,000 shares under the 1992 Plan. Pursuant to Rule 429 and General
Instruction E of Form S-8, this registration statement is being filed to
register an additional 20,000,000 shares authorized under the 1992 Plan. This
registration statement should also be considered a post-effective amendment to
the prior registration statements. The contents of the prior registration
statements are incorporated herein by reference.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in Item 1 will be sent
or given to employees as specified by Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act"). Such documents are not required to be
and are not filed with the Securities and Exchange Commission (the "Commission")
either as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this registration statement pursuant to Item 3 of Part II of
this Form S-8, taken together, constitute a prospectus that meets the
requirements of section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this registration statement (which documents
are incorporated by reference in this section 10(a) prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) or
additional information about the 1992 Plan and its administrators are available
without charge by contacting:
Cy E. Hammond
Senior Vice President, Chief Financial Officer
NCT Group, Inc.
1025 West Nursery Road, Suite 120
Linthicum, Maryland 21090
(410) 636-8700
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been filed previously with the
Commission by NCT Group, Inc. (the "Company") (Commission File No. 0-18267)
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (including Amendments Nos. 1 and 2 thereto filed on
May 3, 1999) and the Company's Annual Meeting Notice and Proxy
Statement dated May 27, 1999 (incorporated therein by reference).
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1999 and June 30, 1999 and all other reports filed
pursuant to Section 13(a) or 15(d) of the Exchange Act since the end
of the Company's fiscal year.
(c) The description of capital stock found in Item 1 of the Company's
Registration Statement on Form 8-A filed with the Commission on
January 30, 1990.
All documents filed with the Commission subsequent to the date of this
registration statement pursuant to Sections 13(a), 13(c), 14 or 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
remaining unsold, shall be deemed to be incorporated by reference into this
registration statement and to be a part hereof from the date of filing of such
documents with the Commission.
Item 4. Descriptions of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Matters relating to the legality of the shares of common stock being
offered hereby have been reviewed for the Company by its outside counsel,
Crowell & Moring, LLP, 1001 Pennsylvania Avenue, NW, Washington, DC 20009.
Item 6. Indemnification of Officers and Directors
Article IX of the Registrant's Certificate of Incorporation provides as
follows:
(a) Each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was a director or officer, of the Corporation
or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or
in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such
amendment only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and
such indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of his
or her heirs, executors and administrators; provided, however, that, except
as provided in paragraph (b) hereof, the Corporation shall indemnify any
such person seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The
right to indemnification conferred in this Section shall be a contract
right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation
Law requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not
entitled to be indemnified under this Section or otherwise. The Corporation
may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as
the foregoing indemnification of directors and officers.
(b) If a claim under paragraph (a) of this Section is not paid in full by the
Corporation within thirty days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition
where the required undertaking, if any is required, has been tendered to
the Corporation) that the claimant has not met the standards of conduct
which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor
an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in
this Section shall not be exclusive of any right which any person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to protect itself
and any director, officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise against
any such expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits listed below are listed according to the number assigned in
the table in Item 601 of Regulation S-K.
Exhibit No. Description of Exhibit
----------- ----------------------
4(a) Certificate of Amendment of the Restated Certificate of
Incorporation of the Company filed in the Office of the
Secretary of State of the State of Delaware on July 29,
1999 (incorporated by reference to Exhibit 3(h) to the
Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999).
4(b) By-laws of the Company (incorporated by reference to
Exhibit 3(b) to Amendment No. 1 of Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1991).
4(c) Noise Cancellation Technologies, Inc. Stock Incentive Plan
(incorporated by reference to Exhibit 10(rr) to Amendment
No. 1 of Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1992).
5 Opinion of Crowell & Moring, LLP, outside counsel to the
Company, as to the legality of the shares of common stock
to which this registration statement relates.
23(a) Consent of Richard A. Eisner & Company, LLP.
23(b) Consent of Peters Elworthy & Moore.
24 Powers of Attorney (see "Signatures").
<PAGE>
Item 9. Undertakings (number as in Item 512 of Regulation S-K)
The undersigned registrant hereby undertakes:
(a) (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 event 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 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 the undertakings set forth in
paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
(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 the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 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 Act and will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Linthicum, State of Maryland, on November 4,
1999.
NCT GROUP, INC.
(Registrant)
Date: November 4, 1999 By: /s/ MICHAEL J. PARRELLA
-----------------------
Michael J. Parrella
President and Chief Executive Officer
Each of the undersigned hereby appoints Michael J. Parrella, President and
Chief Executive Officer, and Cy E. Hammond, Senior Vice President and Chief
Financial Officer, and each of them severally, his or her true and lawful
attorneys to execute (in the name of and on behalf of and as attorneys for the
undersigned) any and 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.
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.
(1) Principal Executive Officer
Date: November 4, 1999 /s/ MICHAEL J. PARRELLA
------------------------
Michael J. Parrella, President and
Chief Executive Officer
(2) Principal Financial Officer and
Principal Accounting Officer
Date: November 4, 1999 /s/ CY E. HAMMOND
------------------------
Cy E. Hammond, Senior Vice President
and Chief Financial Officer
<PAGE>
(3) Board of Directors
Date: November 4, 1999 /s/ JAY M. HAFT
------------------------
Jay M. Haft, Chairman of the Board
and Director
Date: November 4, 1999 /s/ JOHN J. McCLOY
------------------------
John J. McCloy, Director
Date: November 4, 1999 /s/ SAMUEL A. OOLIE
------------------------
Samuel A. Oolie, Director
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Sequential
Exhibit No. Description Page No.
----------- ----------- ----------
<S> <C> <C>
4(a) Certificate of Amendment of the Restated Certificate of
Incorporation of the Company filed in the Office of the
Secretary of State of the State of Delaware on July 29, 1999
(incorporated by reference to Exhibit 3(h) to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1999).
4(b) By-laws of the Company (incorporated by reference to Exhibit
3(b) to Amendment No. 1 of Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1991).
4(c) Noise Cancellation Technologies, Inc. Stock Incentive Plan
(incorporated by reference to Exhibit 10(rr) to Amendment No.
1 of Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1992).
5 Opinion of Crowell & Moring, LLP, outside 11 counsel to the 11
Company, as to the legality of the shares of common stock to
which this registration statement relates.
23(a) Consent of Richard A. Eisner & Company, LLP. 12
23(b) Consent of Peters Elworthy & Moore. 13
24 Powers of Attorney (see "Signatures"). 8
</TABLE>
Exhibit 5
November 4 1999
NCT Group, Inc.
1025 West Nursery Road
Linthicum, Maryland 21090
Re: Registration Statement on Form S-8
Gentlemen:
We serve as outside counsel to NCT Group, Inc., a Delaware corporation
(the "Company"), and have acted as counsel in connection with the preparation
and filing with the Securities and Exchange Commission of the Registration
Statement on Form S-8 that the Company is filing today with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the offering pursuant to the NCT Group, Inc. Stock Incentive Plan of up to
20,000,000 shares of the Company's common stock.
With respect to the Registration Statement on Form S-8, we are of the
opinion that the shares of common stock have been duly authorized by the
Company, have been validly issued and are fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit No. 5 to the Registration Statement on Form S-8
referred to above and to the reference therein to our firm under the caption
"Interests of Named Experts and Counsel".
Respectfully submitted,
/s/ Crowell & Moring LLP
-------------------------
CROWELL & MORING LLP
Exhibit 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated March 11, 1999 (with respect to Note 8, March 24,
1999), on our audits of the consolidated financial statements and schedules of
NCT Group, Inc. (formerly Noise Cancellation Technologies, Inc.) as of December
31, 1998 and 1997 and for each of the years in the three-year period ended
December 31, 1998, included in the Company's Annual Report on Form 10-K, as
amended.
/s/ RICHARD A. EISNER & COMPANY, LLP
New York, New York
November 3, 1999
Exhibit 23(b)
[Peters Elworthy & Moore letterhead]
NCT Group, Inc.
1025 West Nursery Road
Suite 120 Our Ref: PRC/J
Linthicum
Maryland 21090 Date: November 4, 1999
USA
Dear Sirs
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of our report dated February 23, 1999, on the financial statements and
schedule of Noise Cancellation Technologies (Europe) Limited (the "Company") as
at December 31, 1998 and December 31, 1997 and for each of the years in the
three year period ended December 31, 1998, included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1998.
Yours faithfully
/s/ PETERS ELWORTHY & MOORE
