Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
V BAND CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-2990015
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
565 Taxter Road
Elmsford, New York 10523
(Address of Principal Executive Offices) (Zip Code)
V BAND CORPORATION STOCK COMPENSATION PLAN FOR
NON-EMPLOYEE DIRECTORS
(Full title of the plan)
Mark R. Hahn Brian S. North, Esquire
Chief Financial Officer White and Williams
V Band Corporation 1800 One Liberty Place
565 Taxter Road Philadelphia, PA 19103
Elmsford, NY 10523 (215) 864-7000
(914) 789-5000
(Names, addresses and telephone numbers of agents for service)
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CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
securities to to be maximum maximum registration
be registered registered offering aggregate fee
price offering
per share price
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 25,000 $1.63(1) $40,750(1) $12.35
par value $.01
per share
</TABLE>
<PAGE>
(1) Pursuant to Rule 457 under the Securities Act of 1933, the proposed maximum
offering price per share and the maximum aggregate offering price are estimated
solely for purposes of calculating the registration fee and are based upon the
last sale reported on the National Association of Securities Dealers National
Market System on December 11, 1996.
EXPLANATORY NOTE
This registration statement relates to the Corporation's Stock
Compensation Plan for Non-Employee Directors. The prospectus relating to the
offering and sale of the Company's Common Shares to the Company's non-employee
directors pursuant to the Plan is omitted from this Registration Statement
pursuant to the Note to Part 1 of Form S-8, The prospectus included in this
Registration Statement covers the reoffering and resale of such securities by
the non-employee directors who have, or will, acquire such securities under the
Plan.
<PAGE>
PROSPECTUS
V BAND CORPORATION
Common Stock
This Prospectus relates to sales by non-employee directors of V Band
Corporation, a New York corporation (the "Company"), of shares of its Common
Stock, par value $.01 per share ("Common Stock") acquired pursuant to the
Company's Stock Compensation Plan for Non-Employee Directors (the "Plan")
Such shares may be sold from time to time on the over-the-counter
market or in private transactions.
Persons making such sales may be deemed (without their conceding) to be
"affiliates" of the Company and "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Act") and the Rules and Regulations
promulgated thereunder. In addition, such shares may be sold pursuant to Rule
144 of the Securities and Exchange Commission (the "Commission") under the Act
in lieu of being sold pursuant to this Prospectus. Sales made pursuant to this
Prospectus are subject to the volume limitations of Rule 144(e) calculated as of
the date this Prospectus is filed with the Commission. See "Selling
Shareholders."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED
BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
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 November 29, 1996.
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No person has been authorized to give any information or to make any
representations not contained in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer of any securities other
than those to which it relates or to any person in any jurisdiction where such
offer would be unlawful. The delivery of this Prospectus at any time does not
imply that the information herein is correct as of any time subsequent to its
date.
GENERAL INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, and in accordance therewith files reports and
other information with the Securities and Exchange Commission. Such information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following Regional Offices of the Commission: New York
Regional Office, 7 World Trade Center, Suite 1300, New York, New York 10048; and
Chicago Regional Office, Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material can be obtained
from the Public Reference Section of the Commission, 450 Fifth Street N.W.,
Washington, D.C. 20549, at prescribed rates.
The Company will provide, without charge, to each person to whom a
prospectus is delivered, upon written or oral request of such person, a copy of
any and all of the information that has been incorporated by reference in the
registration statement (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by
reference into the information that the registration statement incorporates).
Such requests should be directed to Corporate Secretary, V Band Corporation, 565
Taxter Road, Elmsford, New York 10523, telephone (914) 789-5000.
THE COMPANY
The principal executive offices of the Company are located at 565
Taxter Road, Elmsford, NY 10523.
SELLING SHAREHOLDERS
Shares being sold pursuant to this Prospectus include shares acquired
by non-employee directors of the Company under the Company's Stock Compensation
Plan for Non-Employee Directors.
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No selling shareholder who is an affiliate of the Company within the
meaning of the Act may sell, pursuant to this Prospectus in any three-month
period, more than the greater of (i) one percent of the shares of the Company's
Common Stock outstanding as shown by the Company's most recent report or
published statements or (ii) the average weekly trading volume preceding the
date of sale. As of November 29, 1996, there were approximately 5,323,170 shares
of Common stock outstanding.
The following are the non-employee directors eligible to resell shares
of the Company's Common Stock acquired under the Plan:
Luke P. LaValle, Jr.
Thomas H. Lenagh
Brian S. North
Joseph M. O'Donnell
A. Eugene Sapp, Jr.
J. Stephen Vanderwoude
An aggregate of 25,000 shares of the Company's Common Stock may be
resold by such individuals pursuant to this Prospectus. The number of shares
that may be sold by each individual will depend on the number of shares such
individual elects to acquire pursuant to the Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by V Band Corporation (the "Company")
with the Commission are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year
ended October 31, 1995;
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Annual Report referred to above, including the Company's Quarterly Reports on
Form 10-Q for the quarters ending January 31, 1996 and April 30, 1996; and
3. The description of the Company's Common Stock which is contained in
its registration statement on Form 8-A effective March 24, 1989.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 after the date hereof and prior
to the filing of a post-effective amendment which indicates that all shares of
Common Stock offered have been sold or which de-registers all such shares then
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Item 5. Interests of Named Experts and Counsel
Brian S. North, Esquire, an attorney practicing law with White and
Williams in Philadephia, is the beneficial owner of 103,000 shares of the
Company's Common Stock.
Item 6. Indemnification of Directors and Officers
The Registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Sections 721 through 727 of the
New York State Business Corporation Law. Article IX of the Registrant's By-Laws
provide as follows:
"(a) To the extent permitted by law, the Corporation shall indemnify
any and all persons who may serve or who have served at any time as
directors or officers of the Corporation, or who at the request of the
Board of Directors of the Corporation may serve or at any time have
served as directors or officers of another corporation in which the
Corporation at such time owned or may own shares of stock or of which
it was or may be a creditor, and their respective heirs,
administrators, successors, and assigns, against any and all expenses,
including but not limited to amounts paid upon judgments, fines,
amounts paid in settlement (before or after suit is commenced), and
reasonable expenses actually and necessarily incurred by such persons
in connection with the defense or settlement of any claim, action, suit
or proceeding in which they, or any of them, are made parties or a
party, or which may be asserted against them or any of them, by reason
of being or having been directors or officers or a director or an
officer of the Corporation, or of such other corporation, except in
relation to matters as to which any such director or officer or former
<PAGE>
director or former officer shall be adjudged in any action, suit or
proceeding to be liable for his own negligence or misconduct in the
performance of his duty. Such indemnification shall be in addition to
all other rights to which those indemnified may be entitled under any
law, By-Law, agreement, vote of stockholders, or otherwise.
"(b) The Corporation may provide additional rights of indemnification
and advancement of expenses to officers and/or directors when so
authorized by (i) a resolution of shareholders, (ii) a resolution of
directors, or (iii] an agreement between the Corporation and any
'director or officer providing for such indemnification, provided that
no indemnification may be made to or on behalf of any director or
officer if a judgment or other final adjudication adverse to the
director or Officer establishes that his acts were committed in bad
faith or were the result of active and deliberate dishonesty and were
material to the cause Of action so adjudicated, or that he personally
gained in fact a financial profit or other advantage to which he was
not legally entitled."
The Board of Directors and the Company's shareholders have approved
forms of indemnity agreements and authorized the Company to enter into such
agreements with its directors and officers, and the directors and officers of
its subsidiaries. The indemnity agreements provide for indemnification by the
Company of its directors and officers against certain liabilities arising out of
their service to the Company. The Board of Directors will determine whether to
enter into an indemnity agreement with any particular director or officer. The
Company has entered into such agreements with each person serving as a director
at the date hereof.
Item 8. Exhibits.
4 V Band Corporation Stock Compensation Plan for
Non-Employee Directors
5 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature pages of
this Registration Statement)
Item 9. Undertakings.
The Company 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 Act (ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; (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
<PAGE>
statement; (2) that for the purpose Of determining any liability under the Act,
each such post-effective amendment and each filing Of the issuer's annual report
pursuant to Section 13 or 15(d) of the Securities Exchange Act Of 1934 (or,
where applicable, each filing of the plan's annual report pursuant to Section
15(d) Of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(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
Plan.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of counsel 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 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 Elmsford, State of New York, on November , 1996.
V BAND CORPORATION
By:/s/Thomas E. Feil
-----------------
Thomas E. Feil
(Chief Executive Officer)
Each person whose signature appears below constitutes and appoints,
Thomas E. Feil, Thomas Hughes, and Mark Hahn, and each of them, as his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/Thomas E. Feil Chairman, Chief Executive November , 1996
- ----------------- Officer and Director
Thomas E. Feil
/s/Mark R. Hahn Chief Financial
- --------------- Officer and Principal November , 1996
Mark R. Hahn Accounting Officer
/s/Luke P. LaValle, Jr. Director November 22, 1996
- -----------------------
Luke P. LaValle, Jr.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/Thomas H. Lenagh Director November 22, 1996
- -------------------
Thomas H. Lenagh
/s/Brian S. North Director November , 1996
- -----------------
Brian S. North
/s/Joseph M. O'Donnell Director November , 1996
- ----------------------
Joseph M. O'Donnell
/s/A. Eugene Sapp, Jr. Director November 22, 1996
- ----------------------
A. Eugene Sapp, Jr.
/s/J. Stephen Vanderwoude Director November , 1996
- -------------------------
J. Stephen Vanderwoude
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4 V Band Corporation Stock Compensation
Plan for Non-Employee Directors
5 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in
Exhibit 5)
24 Power of Attorney (contained on
signature pages hereof)
Exhibit 4
STOCK COMPENSATION PLAN FOR
NON-EMPLOYEE DIRECTORS OF V BAND CORPORATION
This is the Stock Compensation Plan for Non-Employee Directors of V
Band Corporation (the "Plan").
1. Purpose. The purpose of the Plan is to attract and retain
outstanding non-employee directors by enabling them to participate in the
Company's growth by electing to receive all or a portion of director
compensation in shares of the Company's Common Stock.
2. Eligibility. Eligibility for participation in the Plan is
limited to persons then currently serving as directors of the Company who are
not "employees" of the Company (or any of its subsidiaries) within the meaning
of the Employee Retirement Income Security Act of 1974 or for federal income tax
withholding purposes.
3. Stock Available for Plan. Shares of stock available for
issuance pursuant to the Plan may be either authorized but unissued shares or
shares which have been or may be reacquired by the Company, including treasury
shares of the Company's Common Stock. An aggregate of 25,000 shares of the
Company's Common Stock shall be made available for issuance under the Plan.
4. Election to Receive Shares.
(a) Exercise of Election. At any time prior to the date cash
compensation would otherwise be payable to a non-employee director for his or
her services as a director (such compensation includes annual retainer fees,
fees for service as a member of a committee of the Board of Directors, and any
fees earned for attendance at a meeting, and is hereinafter referred to as
"Compensation"), such non-employee may make an election to have all or a portion
of his or her Compensation paid by the Company by means of the issuance of the
Company's Common Stock rather than cash. Such election shall be made by
providing the Company's Secretary with notice of such election, which may, but
need not, be in writing (the "Notice of Election"). Any such election made by a
non-employee director shall be effective with respect to all Compensation
payable to such non-employee director after receipt of the Notice of Election by
the Company's Secretary until such time as such non-employee director has
provided a new Notice of Election or has notified the Company that he or she no
longer wishes to have all or a portion of the Compensation paid by the Company
by means of the issuance of the Company's Common Stock.
(b) Determination of Number of Shares. The number of shares
of the Company's Common Stock to be issued to a non-employee director who has
delivered a Notice of Election pursuant to this Plan shall be determined by
dividing (i) the amount of Compensation to be paid by means of the issuance of
the Company's Common Stock, by (ii) the Fair Market Value of the Company's
Common Stock on the date the Compensation would have otherwise been paid in cash
(the "Payment Date"). For the purposes of this Plan, the term "Fair Market
Value" shall mean the last sale price for the day for which the Fair Market
Value is to be determined based upon quotations in the over-the-counter market
as reported by NASDAQ. Any fractional shares resulting from such calculation
shall not be issued but the amount of Compensation which would have otherwise
resulted in the issuance of a fractional share shall, at the option of the
non-employee director, be either paid in cash or carried forward to the next
Payment Date without interest accruing on such carried-forward amount.
<PAGE>
(c) Issuance of Shares. As soon as practicable after each
Payment Date, a certificate or certificates representing the number of shares to
be issued to each non-employee director shall be registered in the name of such
non-employee director and shall be delivered to such non-employee director at
his or her address as it appears in the Company's records. Such non-employee
director shall not be considered, or have any of the rights and privileges of, a
shareholder of the Company with respect to such shares issuable to him or her
unless and until certificates for such shares shall have been registered and
issued to him or her.
5. Listing, Registration, and Legal Compliance. Each issuance of
shares of the Company's Common Stock pursuant to this Plan shall be subject to
the requirement that if at any time counsel to the Company shall determine that
the listing, registration or qualification of such shares upon any securities
exchange or under any foreign, federal or sate securities law or other law or
regulation, or the consent or approval of any governmental body or the taking or
any other action to comply with or otherwise with respect to any such law or
regulation, is necessary or desirable as a condition to or in connection with
such issuance of shares of the Company's Common Stock, no such issuance may be
made or implemented unless such listing, registration, qualification, consent,
approval or other action shall have been effected or obtained free of any
conditions not acceptable to the Company.
6. No Obligation to Nominate. Nothing contained in this Plan
shall be deemed to create any obligation on the part of the Board of Directors
to nominate any director for reelection by the Company's shareholders.
7. Termination and Amendment. The Board of Directors reserves the
right to terminate or amend the Plan at any time.
8. Effective Date. The Plan shall become effective on September
23, 1996.
Exhibit 5
WHITE AND WILLIAMS
1800 One Liberty Place
Philadelphia, Pennsylvania 19103
215-864-7000
November 29, 1996
V Band Corporation
565 Taxter Road
Elmsford, NY 10523
Re: Stock Compensation Plan for Non-Employee
Directors of V Band Corporation
Ladies and Gentlemen:
We have acted as counsel for V Band Corporation (the "Company")
in connection with the preparation and filing of a Registration Statement on
Form S-8 (the "Registration Statement") for the registration under the
Securities Act of 1933, as amended of 25,000 shares of the Company's Common
Stock, $.01 par value (the "Common Stock") which may be issued pursuant to the V
Band Corporation Stock Compensation Plan for Non-Employee Directors (the
"Plan").
In connection with such representation, we have examined the
following documents:
1. The Certificate of Incorporation of the
Company;
2. The By-laws of the Company;
3. Resolutions of the Board of Directors and
shareholders of the Company regarding the Plan;
4. The Plan.
In addition to the foregoing, we have conferred with various
officers of the Company and made such additional investigations of fact as we
deemed necessary for purposes of this opinion.
<PAGE>
V Band Corporation
November 29, 1996
Page Two
Based on the foregoing, it is our opinion that the Common Stock,
upon issuance pursuant to the terms of the Plan, will be duly authorized,
legally and validly issued, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof.
We hereby consent to all references to our firm in the
Registration Statement and to the filing of this opinion by the Company as an
Exhibit to the Registration Statement.
Very truly yours,
/s/White and Williams
---------------------
WHITE AND WILLIAMS
Exhibit 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of V
Band Corporation on Form S-8 of our report dated December 19, 1995, appearing in
the Annual Report on Form 10-K of V Band Corporation for the year ended October
31, 1995.
/s/Delloite & Touche LLP
------------------------
DELLOITE & TOUCHE LLP
Stamford, Connecticut
December 19, 1996
