As filed with the Securities and Exchange
Commission on October 13, 2000
Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
NCT GROUP, INC.
(Exact name of Registrant as specified in Charter)
Delaware 59-2501025
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
20 Ketchum Street, Westport, Connecticut 06880
(203) 226-4447
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
NCT Group, Inc. Stock Incentive Plan
(Full title of the Plan)
CY E. HAMMOND
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER
NCT GROUP, INC.
20 KETCHUM STREET
WESTPORT, CONNECTICUT 06880
(203) 226-4447
(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
TITLE OF PROPOSED MAXIMUM
SECURITIES AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE TO BE OFFERING PRICE FFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE PRICE FEE
-------------- ----------------- -------------- ------------ ------------
COMMON STOCK 12,775,000 SHARES $0.4100 (2) $ 5,237,750 $ 1,382.77
COMMON STOCK 7,225,000 SHARES $0.2550 (3) $ 1,842,375 $ 486.39
---------- ------------ ------------
20,000,000 SHARES $ 7,080,125 $ 1,869.15
(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 NCT Group, Inc. Stock
Incentive Plan.
(2) Weighted average exercise price for options granted under the NCT Group,
Inc. 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 NASD OTC Bulletin Board on
October 10, 2000.
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 NCT Group, Inc.
Stock Incentive Plan (formerly known as 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. A registration statement on Form S-8 (File No. 333-11213) was filed with
the Securities and Exchange Commission on November 4, 1999 to register an
additional 20,000,000 shares authorized under the 1992 Plan. Pursuant to Rule
429 of the Securities Act of 1933, as amended, 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 of the Securities Act. 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) of the
Securities Act, 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.
20 Ketchum Street
Westport, Connecticut 06880
(203) 226-4447
<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, 1999 (filed on April 14, 2000) and the Company's Annual Meeting Notice
and Proxy Statement dated June 2, 2000 (incorporated therein by reference).
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2000, as amended, and June 30, 2000 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 20004.
Item 6. Indemnification of Officers and Directors
Article VIII of the Registrant's Restated Certificate of Incorporation, as
amended to the date of this registration statement, 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 18, 2000.
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) NCT Group, 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;
(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 Exchange Act that are incorporated
by reference in this 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.
(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,
each filing of the registrant's annual report pursuant to Section 13(a) or
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.
(h) 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 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 Town of Westport, State of Connecticut, on October 13, 2000.
NCT GROUP, INC.
(Registrant)
Date: October 13, 2000 By: /s/ MICHAEL J. PARRELLA
------------------------
Michael J. Parrella,
Chairman of the Board and
Chief Executive Officer
Each of the undersigned hereby appoints Michael J. Parrella, Chairman of
the Board 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, as amended,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
(1) Principal Executive Officer
Date: October 13, 2000 /s/ MICHAEL J. PARRELLA
------------------------
Michael J. Parrella,
Chairman of the Board and
Chief Executive Officer
<PAGE>
(2) Principal Financial Officer and
Principal Accounting Officer
Date: October 13, 2000 /s/ CY E. HAMMOND
------------------------
Cy E. Hammond,
Senior Vice President
and Chief Financial Officer
(3) Board of Directors
Date: October 13, 2000 /s/ JAY M. HAFT
------------------------------
Jay M. Haft, Director
Date: October 13, 2000 /s/ JOHN J. McCLOY
------------------------------------
John J. McCloy, Director
Date: October 13, 2000 /s/ SAMUEL A. OOLIE
------------------------------
Samuel A. Oolie, Director
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit No. Description Page No.
4(a) Certificate of Amendment of the Restated 11
Certificate of Incorporation of the
Company filed in the Office of the
Secretary of State of the State of
Delaware on July 18, 2000
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) NCT Group, 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, 13
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, 14
LLP.
23(b) Consent of Peters Elworthy & Moore. 15
24 Powers of Attorney (see "Signatures"). 8
