As filed with the Securities and Exchange Commission on March 28, 1996
Registration No.: 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TELEBYTE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
NEVADA 11-2510138
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
270 Pulaski Road 11740
Greenlawn, New York (Zip Code)
(Address of Principal Executive Offices)
TELEBYTE TECHNOLOGY, INC.
1993 STOCK OPTION PLAN
(Full title of the plan)
JOEL A. KRAMER
Chairman of the Board
Telebyte Technology, Inc.
270 Pulaski Road
Greenlawn, New York 11740
(516) 423-3232
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
WALTER J. GUMERSELL, ESQ.
Rivkin, Radler & Kremer
EAB Plaza
Uniondale, New York 11556-0111
(516) 357-3000
(Cover continued on next page)
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Securities Amount of Shares to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share(1) Price(1)
- ----------------------- ------------------------ ---------------------- --------------------- ---------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 100,000 $ .813 $81,300 $100
par value
<FN>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the amount of the registration fee based upon the average of the bid
and ask prices of the Common Stock as reported by the National
Association of Securities Dealers, Inc.
on March 25, 1996.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
Pursuant to Rule 428(b)(1) of the Securities Act of 1933
("Securities Act"), the documents containing the information with respect to the
Company's 1993 Stock Option Plan, as amended (the "Plan"), required by Item 1 of
Part I of this Registration Statement, will be distributed to holders of stock
options granted under the Plan. Such documents need not be 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 herein in this Registration Statement pursuant to Item 3 of Part II
below, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
In connection with the Telebyte Technology, Inc. 1993 Stock
Option Plan, as amended (the "Plan"), a reoffer prospectus prepared in
accordance with the requirements of Part I of Form S-3 is being filed with the
Commission as part of this Registration Statement. The reoffer prospectus may be
utilized for reofferings of common stock acquired by certain selling
stockholders through the exercise of outstanding options granted under the Plan.
<PAGE>
PROSPECTUS
TELEBYTE TECHNOLOGY, INC.
Principal Executive Office
270 Pulaski Road
Greenlawn, New York 11740
(516) 423-3232
100,000 Shares of Common Stock
$0.01 par value per share
The Shares of Common Stock $0.01 par value ("Common Stock") of
Telebyte Technology, Inc. (the "Company") offered hereby are being sold by
directors, certain officers or key employees of the Company or one or more of
its subsidiaries (the "Selling Stockholders"), who are offering or may offer a
maximum of 100,000 shares (the "Shares") which may be acquired by them from time
to time from the Company upon the exercise of options to purchase such Shares
granted to the Selling Stockholders by the Company pursuant to the Company's
1993 Stock Option Plan, as amended. See "Selling Stockholders".
THESE SECURITIES ARE SUBJECT TO A HIGH DEGREE OF RISK. SEE "RISK FACTORS".
It is anticipated that the Shares may be offered for sale by
one or more of the Selling Stockholders in their discretion, on a delayed or
continuous basis from time to time in transactions in the open market at prices
prevailing at the time of sale on the Over the Counter Bulletin Board, on the
National Association of Securities Dealers Automated Quotation System or in
negotiated transactions. Such transactions may be effected directly by the
Selling Stockholders, each acting as principal for his own account.
Alternatively, such transactions may be effected through brokers, dealers or
other agents designated from time to time by the Selling Stockholders and such
brokers, dealers or other agents may receive compensation in the form of
customary brokerage commissions or concessions from the Selling Stockholders or
the purchasers of the Shares. The Selling Stockholders also may pledge Shares as
collateral and such Shares could be resold pursuant to the terms of such
pledges. The Selling Stockholders, brokers who execute orders on their behalf
and other persons who participate in the offering of the Shares on their behalf
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, as amended (the "Securities Act"), and a portion of the
proceeds of sales and commissions or concessions therefore may be deemed
underwriting compensation for purposes of the Securities Act. The Company will
not receive any part of the proceeds from the sale of Shares by the Selling
Stockholders.
The Company will pay all costs and expenses incurred in
connection with the registration of the Shares under the Securities Act,
estimated to be $5,000. The Selling Stockholders will pay the costs associated
with any sales of Shares, including any discounts, commissions and applicable
transfer taxes.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is March 28, 1996
<PAGE>
===============================================================================
No person has been authorized to give any information or to
make any representations not contained in this Prospectus in connection with the
offering made by this Prospectus, and, if given or made, such information or
representations must not be relied upon as having been authorized by the Company
or the Selling Stockholders. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy the securities to which this
Prospectus relates in any jurisdiction to any person to whom it is unlawful to
make such an offer or solicitation in such jurisdiction. Neither the delivery of
this Prospectus nor any sale made hereunder shall under any circumstances create
any implication that there has been no change in the affairs of the Company
since the date hereof or since the date as of which information is set forth
herein.
================================================================================
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange
Commission (the "Commission"), Washington, D.C., a Registration Statement on
Form S-8 under the Securities Act relating to the shares of its Common Stock
offered hereby. This Prospectus does not contain all the information set forth
in the Registration Statement. The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements, information
statements and other information with the Commission. For further information,
reference is made to the Registration Statement, including the exhibits filed as
a part thereof, and to such reports, proxy statements, information statements
and other information, which may be obtained from the Commission at prescribed
rates or may be inspected without charge and copied at the public reference
facilities of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549;
at the Midwest Regional Office, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and at the Northeast Regional Office, 7 World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material can be obtained
from the Public Reference Section of the Commission, Washington, D.C. 20549, at
prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into
this Prospectus: the Company's annual report on Form 10-KSB for the year ended
December 31, 1995.
All annual reports on Form 10-KSB, quarterly reports on Form
10-QSB, current reports on Form 8-K, definitive information or proxy statements
and other reports filed with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post-effective amendment which indicates that all the
securities offered by this Prospectus have been sold or which deregisters all
the securities remaining unsold shall be deemed to be incorporated by reference
into this Prospectus to be part hereof from the date of filing of such
documents. These documents are or will be available for inspection and copying
at the locations identified above. 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 Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or replaces
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
Prospectus.
The Company undertakes to provide without charge to each
person, including any beneficial owner, to whom a Prospectus is delivered, upon
written or oral request of such person, a copy of any and all information that
has been incorporated by reference in this Prospectus (not including exhibits to
the information that is incorporated by reference unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Such request should be directed to the Secretary, Telebyte
Technology, Inc., 270 Pulaski Road, Greenlawn, New York 11740, telephone number
(516) 423-3232.
RISK FACTORS
An investment in the securities offered hereby is speculative
in nature and involves a high degree of risk. Each prospective purchaser should
carefully consider the following risks, among other things, before making an
investment.
1. Effect on State of Economy. The market for the Company's products
may be adversely affected by a recession or other economic downturn. In
addition, customers currently using the Company's products could decide to
reduce their commitment for future use of such products as the economy worsens
or the market for their products and services is reduced.
2. Technological Change. The industry in which the Company is engaged
is subject to rapid and significant technological change. There are numerous
competitors of the Company in the United States and abroad. There can be no
assurance that the Company's competitors will not succeed in developing
technologies and products that are more effective than any which have been or
are being developed by the Company or which would render the Company's
technology and products obsolete or non-competitive.
3. Government Regulation. The Company does not believe that its present
and currently proposed activities are generally subject to any material
government regulation in the United States or other countries. In the event that
any product is subject to such governmental regulation, the Company will be
required to obtain necessary approvals which could delay or, in certain
circumstances, even prevent the introduction to the marketplace of such product
and result in significant additional expense. The Company cannot predict the
extent to which it may be affected by legislative and other regulatory
developments.
4. Retention of Key Personnel.There can be no assurance that the Company
will be able to retain the services of its key personnel and the loss of the
services of its key personnel could have a material adverse effect on the
Company's business, prospects, or both.
5. Competition. Other companies market products that are competitive
with the Company's products. Some of the competitors have significantly greater
financial, technical and other resources than the Company.
6. Potential Liability; Insurance Coverage. The Company may be exposed
to claims for liability arising out of injuries, property damage or other losses
suffered in connection with the sale of its products. The Company currently has
liability insurance for such losses. There can be no assurance that the Company
will be able to maintain such coverage or obtain additional coverage, at a
reasonable cost or otherwise, or that the coverage that it has or that it may
obtain will be sufficient to cover any or all claims. In the event of a
successful suit against the Company, lack or insufficiency of insurance coverage
could have a material adverse effect on the Company.
7. Control by Certain Shareholders. The President, Joel A. Kramer and
Vice-President, Kenneth S. Schneider, beneficially own 557,534 shares of Common
Stock, or approximately 37% of the outstanding Common Stock of the Company.
Since the holders of Common Stock do not have cumulative voting rights, Messrs.
Kramer and Schneider are in a position, individually and jointly, to
substantially influence the election of the directors of the Company and to
control the Company's affairs.
8. Patent Protection; Proprietary Information. The Company has patents;
however such patents are not material to the Company's business. Not all aspects
of technology which the Company currently uses is covered by patents. No
assurance can be given that the Company will obtain additional patents to
protect adequately all of its technology. The extent to which the Company's
existing and future patents will be upheld and enforced when necessary is
uncertain. If the Company's technology is not protected by patents, the Company
relies on the trade secrets, experience, and lead-time which it now possesses or
which it may develop in order to attain commercial advantages. There can be no
assurance that the Company's competitors have not developed or will not
independently develop trade secrets, experience or lead-time which will negate
the value of the Company's potential competitive advantages.
9. Future Sales of Common Stock. All the Company's shares of Common
Stock currently outstanding and owned by the President and the Vice-President
and other affiliates of the Company are "restricted securities" as that term is
defined in Rule 144 under the Securities Act, and under certain circumstances
may be sold without registration pursuant to that Rule. In general, under Rule
144, a person who has satisfied a two-year holding period may, under certain
circumstances, sell within any three month period a number of shares of Common
Stock which does not exceed the greater of 1% of the then outstanding shares of
Common Stock or the average weekly trading volume in such shares during the four
calendar weeks prior to such sale. Rule 144 also permits, under certain
circumstances, the sale of shares of without any quantity or other limitation by
a person who is not an affiliate of the Company and who has satisfied a
three-year holding period. All of such outstanding shares have satisfied the
Rule 144 two-year holding period requirement and accordingly are eligible for
sale at any time. Any substantial sale of restricted securities pursuant to Rule
144 may have an adverse effect on the market price of Common Stock.
10. No Dividends. The Company has not paid any cash dividends on its
Common Stock since its inception and does not anticipate paying cash dividends
on its Common Stock in the foreseeable future.
THE COMPANY
The Company is the registrant of the Common Stock to which
this Prospectus relates. The Company was incorporated in Nevada in 1987 and its
principal executive office is located at 270 Pulaski Road, Greenlawn, New York
11740. Its telephone number is (516) 423-3232.
SELLING STOCKHOLDERS
The following persons are directors, officers or key employees
of the Company or one or more of its subsidiaries, each of whom is eligible to
sell pursuant to this Prospectus the number of Shares set forth opposite his
name in the table below.
<TABLE>
<CAPTION>
NUMBER OF
SELLING SHARES OF CLASS NUMBER OF NUMBER OF
STOCKHOLDERS OWNED AS OF SHARES ELIGIBLE SHARES OWNED
MARCH 27, 1996 (1) TO BE SOLD (2) AFTER SALE (3)
------------------ -------------- --------------
<S> <C> <C> <C>
Joel A. Kramer 262,996 10,000 252,996
Kenneth S. Schneider 294,538 10,000 284,538
Keith B. Wiley 10,100 10,000 100
<FN>
(1) Assumes the exercise of all options held as of March 27, 1996 to
purchase Shares granted to the Selling Stockholders pursuant to the
Company's 1993 Stock Option Plan, as amended.
(2) Assumes all Shares have been issued upon exercise of outstanding Options
held by the Selling Stockholders.
(3) Assumes sale of all Shares eligible to be offered hereby by the Selling
Stockholders.
</FN>
</TABLE>
DESCRIPTION OF COMMON STOCK
General
Common Stock
The Company presently is authorized to issue 9,000,000 shares
of Common Stock, $.01 par value, 1,501,566 of which were issued and outstanding
as of the date hereof.
Holders of Common Stock have rights to receive such dividends
as may be declared by the Board of Directors and are entitled upon liquidation,
dissolution or winding up of the Company to share ratably in the net assets
available for distribution. Holders of Common Stock have no conversion or
preemptive rights, and the shares are not subject to redemption. All shares of
Common Stock now outstanding are fully paid and nonassessable.
Holders of Common Stock are entitled to one vote for each
share held of record on all matters to be voted by stockholders, including
elections of directors. The holders of Common Stock do not have cumulative
voting rights and, accordingly, the holders of more than 50% of the outstanding
shares can elect all of the directors of the Company.
Transfer Agent
American Stock Transfer and Trust Co. is the transfer agent and registrar of the
Common Stock.
PLAN OF DISTRIBUTION
It is anticipated that the Shares may be offered for sale by
one or more of the Selling Stockholders in their discretion, on a delayed or
continuous basis from time to time in transactions in the open market at prices
prevailing at the time of sale on the Over the Counter Bulletin Board, the
National Association of Securities Dealers Automated Quotation System or in
negotiated transactions. Such transactions may be effected directly by the
Selling Stockholders, each acting as principal for his own account.
Alternatively, such transactions may be effected through brokers, dealers or
other agents designated from time to time by the Selling Stockholders and such
brokers, dealers or other agents may receive compensation in the form of
customary brokerage commissions or concessions from the Selling Stockholders or
the purchasers of the Shares. The Selling Stockholders also may pledge Shares as
collateral and such Shares could be resold pursuant to the terms of such
pledges. The Selling Stockholders, brokers who execute orders on their behalf
and other persons who participate in the offering of the Shares on their behalf
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act and a portion of the proceeds of sales and commissions or
concessions may therefore be deemed underwriting compensation for purposes of
the Securities Act. The Company will not receive any part of the proceeds from
the sale of Shares by the Selling Stockholders.
LEGAL MATTERS
Certain legal matters relating to the issuance of the Shares
of Common Stock offered hereby have been passed upon for the Company by Rivkin,
Radler & Kremer, Uniondale, New York.
EXPERTS
The financial statements of the Company for the year ended
December 31, 1995, in the Company's Annual Report on Form 10-KSB, have been
audited by Grant Thornton LLP, independent certified public accountants, as set
forth in their report thereon included therein and incorporated herein by
reference. Such financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
<PAGE>
TABLE OF CONTENTS
Page
Available Information ...............................................3
Incorporation of Certain Documents
by Reference.......................................................3
Risk Factors.........................................................4
The Company..........................................................6
Selling Stockholders.................................................6
Description of Common Stock..........................................7
Plan of Distribution.................................................8
Legal Matters........................................................8
Experts..............................................................8
<PAGE>
II-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information previously filed with
the Securities and Exchange Commission are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1995.
(b) The description of the Common Stock which is contained in the Prospectus
filed as part of this Registration Statement.
(c) All other reports filed by the Registrant pursuant to Section 13(a) and
15(d) of the Exchange Act since the end of the Registrant's fiscal year ended
December 31, 1995.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be 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 that
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any 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.
Inapplicable
Item 5. Interests of Named Experts and Counsel.
Inapplicable
Item 6. Indemnification of Directors and Officers.
Pursuant to subsection (1) of Section 78.751 of the Nevada
General Corporation Law, the corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, except an action by or in the right of the corporation, by reason
of the fact that one is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with the action, suit or proceeding if one acted in good
faith and in a manner in which one reasonably believed to be in or not opposed
to the best interests of the corporation, and with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any such action by judgment, order, settlement,
conviction, or upon a plea of nolo contendre or its equivalent does not, itself,
create a presumption that the person did not act in such good faith and in a
manner which he reasonably believed to be in and not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful.
Pursuant to subsection (2) of Section 78.751, the
indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged, by a court of competent jurisdiction, after
exhaustion of all appeals, to be liable to the corporation or for amounts paid
in settlement to the corporation, unless and only to the extent that the court
determines that the person is fairly and reasonably entitled to indemnity.
Subsection (3) of Section 78.751 provides that to the extent that a director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in the defense of any action, he must be indemnified by the
corporation against expenses actually reasonably incurred by him in connection
with the defense.
Subsection (4) of Section 78.751 provides that any
indemnification under the circumstances described must be made by the
corporation, only as authorized in the specific case, upon a determination that
indemnification is proper under the circumstances. The determination to
indemnify must be made: (a) by the stockholders; (b) by the Board of Directors
by majority vote of a quorum consisting of directors who were not parties to the
act, suit or proceedings; (c) if a majority vote of a quorum consisting of
directors who are not parties to the act, suit or proceeding so orders, by
independent legal counsel in a written opinion; or (d) if a quorum consisting of
directors who were not parties to the act, suit or proceeding cannot be
obtained, by independent legal counsel in a written opinion.
Subsection (5) of Section 78.751 provides that the articles of
incorporation, by-laws, or agreement by the corporation, may provide that the
expenses incurred by the officers and directors in defending a civil or criminal
action, suit or proceeding must be paid by the corporation as they are incurred
in advance of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the director or officer to repay
the amount if it is later determined that he is not entitled to be indemnified.
Subsection (6) of Section 78.751 provides that the indemnification authorized by
this statute: (a) does not exclude any other rights to indemnification granted
by the articles of incorporation, by-laws, agreement, vote of stockholders,
disinterested directors or otherwise, except that indemnification, unless
authorized by a court of competent jurisdiction, may not be made to or on behalf
of any director or officer if a final adjudication establishes that his acts or
omissions involved intentional misconduct, fraud or knowing violation of law and
was material to the cause of action; and (b) continues for a person who has
ceased to be a director, officer, employee or agent and inures to the benefit of
the heirs, executives and administrators of such a person.
The Company's by-laws provide that the Company shall indemnify
its directors, officers, employees or agents as provided in subsection (1) of
Section 78.751. The Company's by-laws also provide that the Company shall
indemnify its directors, officers, employees or agents if any of them are made a
party or threatened to be made a party to any threatened, pending, or completed
action or suit by or in the right of the Company to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit, if he acted in
good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Company. Indemnification is not permitted if the
person has been adjudged by a court of competent jurisdiction, after the
exhaustion of all appeals, to be liable to the Company or for amounts paid in
settlement to the Company, unless and only to the extent that a court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
The Registrant believes that it is the position of the
Securities and Exchange Commission that, insofar as the foregoing provisions may
be invoked to disclaim liability for damages arising under the Securities Act,
such provisions are against public policy as expressed in the Securities Act and
are therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
Exhibit
Number
4.1 Certificate of Incorporation1
4.2 By-laws2
4.3 1993 Stock Option Plan
5.1 Opinion of Rivkin, Radler & Kremer
24.1 Consent of Grant Thornton LLP
24.2 Consent of Rivkin, Radler & Kremer (included in
Exhibit 5.1)
Item 9. Undertakings.
(a) 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;
(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 together, represent a fundamental change in
the information set forth in the Registration Statement;
(iii) To include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
shall 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 Section 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 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) The undersigned Registrant hereby undertakes
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
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.
(c) Insofar as indemnification for liabilities
arising under the Securities Act of 1933 (the "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,
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 County of Suffolk, State of New York, on March 28, 1996.
TELEBYTE TECHNOLOGY, INC.
/s/
By -------------------------------
Joel A. Kramer, President and
Chairman of the Board of Directors
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.
Signature Title Date
/s/
- -------------------- President and Chairman March 28, 1996
Joel A. Kramer of the Board of Directors
(Principal Executive Officer
and Financial Officer)
/s/
- --------------------- Director March 28, 1996
Kenneth S. Schneider
/s/
- ---------------------
Keith B. Wiley Director March 28, 1996
<PAGE>
INDEX TO EXHIBITS
Exhibit Number Description of Exhibits Sequentially Numbered
Pages
4.3 1993 Stock Option Plan.......................... E-1
5.1 Opinion of Rivkin, Radler & Kremer............... E-10
24.1 Consent of Grant Thornton LLP.................... E-11
24.2 Consent of Rivkin, Radler & Kremer (included in Exhibit 5.1)
<PAGE>
E-8
EXHIBIT 4.3
TELEBYTE TECHNOLOGY, INC.
1993 STOCK OPTION PLAN
The purpose of the 1993 Stock Option Plan (the "Plan") is to
assist Telebyte Technology, Inc. (the "Company") to attract and retain qualified
directors and key employees of the Company, a Subsidiary, or a Parent of the
Company, by enabling them to acquire common stock of the Company and thus
providing incentive for them to expend maximum effort for the success of the
Company's business. The Plan provides for the issuance of incentive stock
options ("Incentive Stock Options") pursuant to Section 5(a) and of
non-qualified options ("Non-Qualified Options") pursuant to Section 5(b). The
Incentive Stock Options granted under Section 5(a) are intended to qualify as
incentive stock options under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). Non-Qualified Options granted pursuant to Section 5(b)
are intended to be options which do not satisfy the requirements of Section 422
of the Code. All references to "options" in the Plan shall include Incentive
Stock Options and Non-Qualified Options. The Plan is intended to meet the
requirements of Rule 16(b)-3 ("Rule 16(b)-3") promulgated under Section 16(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
The options offered pursuant to the Plan are a matter of
separate inducement to directors and employees and are not in lieu of any salary
or other compensation for the services of such persons.
The Company by means of the Plan seeks to retain the services
of persons now serving the Company or any Subsidiary or Parent of the Company
and to secure the services of additional persons capable of providing services
important to the welfare of the Company or any Subsidiary or Parent of the
Company.
To assist in meeting the objectives described above, the
Company hereby adopts the Plan.
<PAGE>
===============================================================================
11. Amount and Source of Stock. The aggregate number and class of shares which
may be the subject of options granted pursuant to the Plan is 100,000 shares of
common stock of the Company, par value $.01 per share, subject to adjustment as
provided in Section 10 of the Plan. Such shares may be authorized but unissued
shares of common stock of the Company or may be shares held in or acquired for
the treasury of the Company. Any shares of common stock reserved for issuance or
transfer under an option which for any reason terminates, expires or is canceled
unexercised as to such shares, may be reserved for issuance or transfer under
another option granted under the Plan . The aggregate fair market value
(determined at the time the option is granted) of the shares as to which
Incentive Stock Options may be granted to any option holder ("Optionee") under
this Plan or any other plan of the Company or any Subsidiaries or Parent of the
Company which are exercisable for the first time by such option holder during
any calendar year shall not exceed $100,000.
================================================================================
12. Administration of the Plan.
a. The Plan shall be administered by the Board f Directors of
the Company, which, to the extent it shall determine, may delegate its powers
with respect to administration of the Plan to a committee (the "Committee")
consisting of not less than two members. The Board of Directors shall determine,
within the limits of the express provisions of the Plan, those directors and key
employees including officers who are to receive options under the Plan and the
number of shares of common stock to be subject to such options. Options granted
under the Plan shall, subject to the provisions of Sections 5 and 12 hereof and
the following sentence, be in such form as determined and approved by the Board
of Directors. The Board of Directors shall interpret the Plan, prescribe, amend
and rescind rules and regulations, forms, notices and agreements relating to it
and make all determinations necessary or advisable for its administration, all
such actions as approved by the Board of Directors to be final and conclusive.
b. The Board of Directors may from time to time appoint members
of the Committee in addition to or in substitution for members previously
appointed and may fill any vacancies in the Committee. The Committee shall elect
one of its members as Chairman, and may appoint a secretary, who need not be a
member of the Committee or a director of the Company, to keep minutes of its
meetings. Meetings of the Committee shall be held at such times and places as it
shall deem advisable. A majority of the members of the Committee shall
constitute a quorum. All action of the Committee shall be by a majority of its
members. Any action may be taken by unanimous written consent setting forth the
action taken, signed by all of the members of the Committee, and action so taken
shall have the same effect as if it had been taken by unanimous vote at a
meeting duly held and called. The Committee shall report its action at meetings
or by unanimous written consent to the Board of Directors.
c. At any time prior to the appointment of the Committee and at any
time thereafter when the Committee shall not be duly constituted and subject to
all eligibility limitations which would otherwise apply to the Plan, the Board
of Directors shall exercise all the functions of the Committee under the Plan.
13. Effective Date and Term of Plan. The Plan as originally
adopted shall become effective when adopted by the Board of Directors of the
Company, except that unless the Plan is authorized by the affirmative vote of
the holders of a majority of the outstanding shares of common stock of the
Company within 12 months after its adoption by the Board of Directors, the Plan
and all options outstanding under the Plan shall terminate at the expiration of
such 12 month period. The solicitation of such approval shall be in accordance
with the laws of the State of Nevada and in accordance with Section 14(a) of the
Exchange Act. Options may be granted under the Plan within 10 years from the
date of its adoption by the Board of Directors, but not thereafter.
14. Eligible Participants. Only directors and key employees
of the Company or a Subsidiary or a Parent of the Company shall be eligible to
receive options under the Plan. An employee who is also a director of the
Company or a Subsidiary or a Parent of the Company shall be eligible to
participate under the Plan. Except as provided in Section 5(a)(v) below, no
Incentive Stock Option shall be granted to a non-employee director or an
individual who, immediately before the granting of the option, owns (or is
deemed to own) stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or a Parent or Subsidiary of the Company.
15. Grant and Terms of Options. The Board of Directors may
grant options at any time or from time to time prior to the termination of the
Plan, and except as hereinafter provided, such options shall be subject to the
following terms and conditions:
a. Incentive Stock Options.
i. Purchase Price. The purchase price
provided for in each Incentive Stock Option granted pursuant to this Section
5(a) of the Plan shall be determined by the Board of Directors, provided that in
no instance shall such price be less than the fair market value of the shares
subject to such option on the date on which the Incentive Stock Option is
granted.
ii. Duration of Option.Each Incentive Stock
Option granted pursuant to the Plan will terminate no later than 10 years from
the date on which it is granted, unless it is terminated earlier under Section 7
or 8.
iii. Transferability of Option. No Incentive
Stock Option shall be transferable by the employee in whole or in part other
than by will or the laws of descent and distribution, and each such option shall
be exercisable, during the lifetime of the employee, only by him or her.
iv. Exercise of Option. Subject to the
provisions of this Section 5(a), the Board of Directors shall have absolute
discretion in determining whether any Incentive Stock Option granted hereunder
shall be exercisable in whole at one time or in part from time to time and, if
in part from time to time, the rate at which such option shall be exercisable on
a cumulative or non-cumulative basis. Except as provided in Section 7 and 8, no
Incentive Stock Option may be exercised at a time when the Optionee is not an
employee of the Company or a Subsidiary or a Parent of the Company.
v. Special Ten Percent Shareholder Rule.
Sections 4, 5(a)(i) and 5(a)(ii) notwithstanding, an Incentive Stock Option may
be granted to an individual who immediately before the granting of such option
owns (or is deemed to own) stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or a Subsidiary or a Parent
of the Company, if at the time such option is granted, (i) such option price is
at least 110% of the fair market value of the stock subject to such option, and
(ii) such option by its terms may not be exercised after the expiration of 5
years from the date on which it was granted.
b. Non-Qualified Stock Options.
i. Purchase Price. The purchase price
provided for Non-Qualified Option granted pursuant to this Section 5(b) of the
Plan shall be determined by the Board of Directors.
ii. Duration of Option. Each Non-Qualified
Option granted pursuant to the Plan will terminate no later than 10 years from
the date on which it is granted, unless it is terminated earlier under Section 7
or 8 hereof.
iii. Transferability of Option. No
Non-Qualified Option shall be transferable by the employee or a director in
whole or in part other than by will or the laws of descent or distribution, and
each such option shall be exercisable, during the lifetime of the employee or
director, only by him or her.
iv. Exercise of Option. Subject to the
provisions of this Section 5(b), the Board of Directors shall have absolute
discretion in determining whether any Non-Qualified Option granted hereunder
shall be exercisable in whole at one time or in part from time to time and, if
in part from time to time, the rate at which such option shall be exercisable on
a cumulative or non-cumulative basis. Except as provided in Section 7 and 8, no
Non-Qualified Option may be exercised at a time when the Optionee is not an
employee or a director of the Company or a Subsidiary or a Parent of the
Company.
16. Manner of Exercise of Options.
a. Unless the Board of Directors shall otherwise determine, an option,
to the extent exercisable under the Plan, may be exercised by delivery to the
Secretary of the Company, at its principal office, of a written notice, signed
by the person entitled to exercise the option, specifying the number of shares
purchasable under the option which the Optionee then wishes to purchase,
together with a certified or bank cashier's check payable to the order of the
Company, or cash, in the amount of the aggregate option price for such number of
shares and any withholding tax due.
b. Unless the shares to be acquired upon
exercise of an option may, at the time of such acquisition, be lawfully resold
in accordance with a then currently effective registration statement or
post-effective amendment under the Securities Act of 1933, as amended, the Board
of Directors may provide, as a condition to the delivery of any shares to be
purchased upon exercise of the option, that the Company receive appropriate
evidence that the Optionee is acquiring the shares for investment and not with a
view to the distribution or public offering of the shares, or any interest in
the shares, and a representation to the effect that the Optionee shall make no
sale or other disposition of the shares unless (a) the Company shall have
received an opinion of counsel satisfactory to it in form and substance that the
sale or other disposition may be made without registration under the then
applicable provisions of the Securities Act of 1933, as amended, and the related
rules and regulations of the Securities and Exchange Commission, or (b) the
shares shall be included in a currently effective registration statement or
post-effective amendment under the Securities Act of 1933, as amended. In no
event shall stock be issued or certificates be delivered until full payment as
required by the Plan shall have been received by the Company, nor shall the
Optionee have any right or status as a shareholder prior to such payment. In no
event shall a fraction of a share be purchased or issued under the Plan.
c. If at any time the Board of Directors
shall determine in its discretion that the listing, registration or
qualification of the shares covered by the Plan upon any national securities
exchange or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the sale or purchase of shares subject to the Plan, no such
shares shall be delivered unless and until such listing, registration,
qualification, consent or approval shall have been effected or obtained, or
otherwise provided for, free of any conditions not acceptable to the Board of
Directors.
17. Termination of Employment. In the event that the
employment of any employee or tenure as a director of an Optionee shall be
involuntarily terminated other than for cause or by reason of the death or
permanent disability of the Optionee, the option may be exercised by the
Optionee to the extent that he or she was entitled to do so at the termination
of his or her employment, at any time within three months after such
termination, but in no event may an option be exercised after the date on which
it would otherwise terminate. In the event that the employment of any employee
or the tenure of a director shall be voluntarily terminated or terminated for
cause, any option held by the employee or a director under the Plan, to the
extent not previously exercised, shall forthwith terminate. Normal retirement or
early retirement with the consent of the Company or a Subsidiary or a Parent of
the Company pursuant to any retirement plan shall not constitute a voluntary
termination of employment or a termination of employment for cause, but shall be
considered for this purpose to be an involuntary termination other than for
cause. Nothing in the Plan or in any option granted pursuant to the Plan shall
confer on any individual any right to continue in the employ or as a director of
the Company or a Parent or a Subsidiary of the Company, or interfere in any way
with the right of the Company or a Parent or a Subsidiary of the Company to
terminate his or her employment or tenure as a director.
18. Death or Disability of an Optionee. If an Optionee
shall die while employed by or serving as a director of the Company or a
Subsidiary or a Parent of the Company, the option may be exercised (a) to the
extent that the employee or director was entitled to do so at the date of his or
her death, and (b) to the additional extent that the employee or director would
have been entitled to do so had the option been exercisable with respect to the
number of shares covered by the next installment, if any, of the option, by a
legatee or legatees of the Optionee under his or her last will or by his or her
personal representatives or distributees at any time within one year after the
date of death, but in no event may the option be exercised after the date on
which it would otherwise terminate.
If an Optionee shall die within three months after the
involuntary termination, other than for cause, of his or her employment by or of
his or her service as a director of the Company or a Subsidiary or a Parent of
the Company, the option may be exercised, to the extent that the employee or
director was entitled to do so at the date of his or her death, by a legatee or
legatees of the Optionee under his or her last will or by his or her personal
representative or distributees at any time within one year after the date of
death, but in no event may the option be exercised after the date on which it
would otherwise expire.
If an Optionee shall become permanently disabled (within the
meaning of Section 22(e)(3) of the Code) while employed by or serving as a
director of the Company or a Subsidiary or a Parent of the Company, the option
may be exercised by the Optionee to the extent that he or she was entitled to do
so at the termination of his or her employment or tenure as a director, at any
time within one year after such termination, but in no event may an option be
exercised after the date on which it would otherwise expire.
19. Six Month Holding Period. The employee or director
may not dispose of the common shares received upon exercise of the option within
six months of the acquisition of the option.
20. Adjustment of Number and Price of Shares Subject
to Options. If the outstanding shares of the common stock of the Company are
subdivided, consolidated, increased, decreased, changed into or exchanged for a
different number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, capital adjustment
or otherwise, or if the Company shall issue common stock as a dividend or upon a
stock split, then the number and kind of shares available for purposes of the
Plan and all shares subject to the unexercised portion of any options previously
granted and the exercise price of those options shall be appropriately adjusted.
However, no such adjustment shall change the total exercise price applicable to
the unexercised portion of any outstanding option.
Adjustments under this Section 10 shall be made by the Board
of Directors, whose determination as to what adjustments shall be made shall be
final and binding. In computing any adjustment under this Section 10, any
fractional share which might otherwise become subject to an option shall be
eliminated.
21. Liquidation, Merger or Consolidation. In the event
of the dissolution or liquidation of the Company, or in the event of a merger or
consolidation in which (i) the Company is a party and (ii) the agreements
governing such merger or consolidation do not provide for the issuance of
substitute options or the assumption of the options issued hereunder (as issuing
and assuming are defined in Code Section 424(a)), with substantially equivalent
terms as determined by the Board of Directors in lieu of the options granted
under the Plan or for the express assumption of such outstanding options by the
surviving corporation, the Board of Directors shall declare that each option
granted under the Plan shall terminate as of a date to be fixed by the Board of
Directors (the "Termination Date"), provided that the Board of Directors shall
cause to be mailed thirty (30) days before the Termination Date written notice
of the Termination Date to each Optionee, and each Optionee shall have the
right, during the period between the receipt of the written notice and the
Termination Date to exercise his option, in whole or in part, whether or not all
or any part of such option would not otherwise be exercisable. The notice of
exercise must be received by the Company on or prior to the Termination Date.
Any then outstanding option not exercised in its entirety on or prior to the
Termination Date specified by the Board of Directors and any and all rights
thereunder shall terminate as of said date.
22. Amendment or Discontinuance of Plan. The Board
of Directors may alter, suspend or discontinue the Plan at any time, except that
no action of the Board may, without appropriate shareholder action, materially
increase the benefits accruing to the participants under the Plan, materially
increase the maximum number of shares subject to the Plan (except as provided in
Section 10), materially modify the requirements for eligibility under the Plan,
implement any change requiring shareholder approval under Rule 16(b)-3 or the
Code or any other applicable law and, without the consent of the Optionee, no
such action shall alter the terms of, or impair the rights of the Optionee under
any option previously granted pursuant to the Plan. Unless sooner terminated,
the Plan shall terminate as provided in Section 3. An option may not be granted
while the Plan is suspended or after it is terminated. The rights and
obligations under any option granted while the Plan is in effect may not be
altered or impaired by suspension or termination of the Plan, except upon the
consent of the person to whom the option was granted. The power of the Board of
Directors to construe and administer any options granted prior to the
termination or suspension of the Plan shall nevertheless continue after and
survive such termination and continue during such suspension.
23. Miscellaneous Provisions.
a. Subsidiary. As used herein, the term
'subsidiary' means any 'subsidiary corporation' within the meaning of Section
424(f) of the code.
b. Parent. As used herein, the term
"parent" means any "parent corporation" within the meaning of Section 424(e) of
the Code.
c. Permanently Disabled. As used herein,
the term "permanently disabled" means "permanently disabled" within the meaning
of Section 22(e)(3) of the Code.
d. Governing Law. The Plan shall be
governed by the laws of the State of Nevada.
<PAGE>
E-10
EXHIBIT 5.1
RIVKIN, RADLER & KREMER
EAB Plaza
Uniondale, New York 11566-0111
March 28, 1996
Telebyte Technology, Inc.
270 Pulaski Road
Greenlawn, NY 11740
Gentlemen:
You have requested our opinion in connection with a Registration
Statement on Form S-8 to be filed by Telebyte Technology, Inc. (the "Company")
with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the "Act"), for registration under the Act of 100,000 common
shares (the "Shares"), $.01 par value, in connection with the Company's 1993
Stock Option Plan (the "Plan").
As counsel for the Company, we have examined such records, documents
and questions of law as we have deemed appropriate for the purposes of this
opinion and, on the basis thereof, advise you that in our opinion that, when the
Shares have been registered under the Act and when the Company has received the
consideration to be received for said Shares in accordance with the provisions
of the Plan and said Shares have been issued by the Company as provided under
the Plan, the Shares to be issued by the Company as a result of the exercise, if
any, of the options under the Plan will be, legally issued and fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm in the Prospectus under
the caption "Legal Matters."
Very truly yours,
/s/ Rivkin, Radler & Kremer
<PAGE>
E-11
EXHIBIT 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 1, 1996, accompanying
the financial statements of Telebyte Technology, Inc. appearing in the 1995
Annual Report on Form 10-KSB for the year ended December 31, 1995 which is
incorporated by reference in this Registration Statement on Form S-8. We consent
to the incorporation by reference in the Registration Statement of the
aforementioned report and to the use of our name as it appears under the caption
"Experts".
GRANT THORNTON LLP
/S/ Grant Thornton LLP
Melville, New York
March 1, 1996
<PAGE>
1 The Certificate of Incorporation was filed with the Company's proxy statement
filed in June 1987 and is incorporated by reference herein (Commission File No.
0-11883).
2 The By-laws were filed as an Exhibit to the Company's Form 8-K filed in the
third quarter of 1987 and are incorporated by reference herein (Commission File
No. 0-11883).
