REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
VDC COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1524454
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
75 Holly Hill Lane
Greenwich, Connecticut 06830
(203) 869-5100
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
--------------------------
VDC Communications, Inc. 1998 Stock Incentive Plan, as Amended
(Full title of the plan)
--------------------------
Frederick A. Moran
Chairman and Chief Executive Officer
VDC Communications, Inc.
75 Holly Hill Lane
Greenwich, Connecticut 06830
(203) 869-5100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
Louis D. Frost, Esq. James J. Barnes, Esq.
VDC Communications, Inc. Buchanan Ingersoll Professional Corporation
75 Holly Hill Lane One Oxford Centre
Greenwich, Connecticut 06830 301 Grant Street, 20th Floor
(203) 869-5100 Pittsburgh, Pennsylvania 15219-1410
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of
Each Class
Of Securities Amount Proposed Proposed
To Be To Be Maximum Offering Maximum Aggregate Amount of
Registered Registered(1) Price Per Share Offering Price Registration Fee
---------- ------------- --------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $.0001 par value 4,224,500 $1.094(2) $4,621,603 $1,285
Common Stock, $.0001 par value 565,500 $1.25(3) $706,875 $197
Common Stock $.0001 par value 210,000 $1.38(3) $289,800 $81
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, as amended, this
Registration Statement also includes additional shares of common stock
issuable upon stock splits, stock dividends or similar transactions.
(2) Estimated pursuant to Rule 457(c) for the purpose of calculating the
registration fee. Based on the average of the high and low prices per
share of common stock on November 17, 1999 as reported on the American
Stock Exchange.
(3) In accordance with Rule 457(h), such price is the exercise price for
the shares underlying these outstanding options.
--------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents(s) containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). Such documents are
not being 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. Such documents and the documents incorporated
by reference in this Registration Statement pursuant to Item 3 of Part II of
this Form, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by VDC Communications,
Inc., a Delaware corporation (the "Company"), with the Commission, are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999, as filed with the Commission on September
28, 1999 pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (File No. 001-14281).
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(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999, as filed with the Commission on
November 15, 1999 pursuant to the Exchange Act (File No.
001-14281).
(c) The Company's Proxy Statement on Schedule 14A for the
Company's 1999 Annual Meeting, as filed with the Commission on
November 10, 1999 pursuant to the Exchange Act (File No.
001-14281).
(d) The descriptions of the Company's common stock which are
contained in registration statements on Form 8-A under the
Exchange Act, including any amendment reports filed for the
purpose of updating such description.
(e) In addition, all documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act, 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 herein and to be part hereof from the date of the
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the General Corporation Law of the State of
Delaware ("Delaware Corporation Law") provides, in general, that a corporation
shall have the power to 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
(other than an action by or in the right of the corporation), by reason of the
fact that he is or was a director or officer of the corporation or is serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or business entity. Such indemnity may be against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding, if the indemnified party acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and if, with respect to any criminal action or proceeding, the
indemnified party did not have reasonable cause to believe his conduct was
unlawful.
Section 145(b) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he 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 or another corporation or
business entity, against any expenses (including attorneys' fees) actually and
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reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation.
Section 145(g) of the Delaware Corporation Law provides, in
general, that a corporation shall have the power to purchase and maintain
insurance on behalf of any person who 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 or another corporation or business entity
against any liability asserted against him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of the law.
Article Seventh of the Registrant's Certificate of Incorporation, as
amended, (incorporated by reference herein) provides that:
(a) RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party 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
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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) RIGHT OF CLAIMANT TO BRING SUIT:
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 or conduct, shall be a
defense to the action or create a presumption that the claimant has not
met the applicable standard or conduct.
(c) Notwithstanding any limitation to the contrary contained in
sub-paragraphs 8(a) and 8(b), the corporation shall, to the fullest
extent permitted by Section 145 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented, indemnify
any and all persons whom it shall have power to indemnify under said
section from and against any and all of the expenses, liabilities or
other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under any By-law,
agreement, vote of stockholders or disinterested Directors or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, and shall continue as to a person who
has ceased to be director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
(d) INSURANCE:
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.
In addition, Article Eight of the Registrant's Certificate of
Incorporation, as amended, provides that:
Under Section 102(b)(7) of the Delaware General Corporation Law, and
other provisions of the Delaware General Corporation Law, no director
shall be personally liable to the Corporation or its stockholders for
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monetary damages for any breach of fiduciary duty by such director as a
director. Notwithstanding the foregoing sentence, a director shall be
liable to the extent provided by applicable law (i) for breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174
of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. No
amendment to or repeal of this Article 9 shall apply to or have any
effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment.
The Company has liability insurance for the benefit of its directors
and officers. The insurance covers, in general, claims against such persons
alleging error, omission, misstatement, misleading statement, neglect, breach of
duty or negligent act. The insurance also provides certain coverage for the
Company and employees of the Company in connection with certain securities law
claims. The insurance covers claims referenced above, except as prohibited by
law, or otherwise excluded by such insurance policy.
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 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.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description Method of Filing
----------- ----------- ----------------
<S> <C> <C>
3.1 Certificate of Incorporation, as amended, of VDC (1)
Communications, Inc.
3.2 Amended and Restated Bylaws of VDC Communications, Inc. (1)
5.1 Opinion of Buchanan Ingersoll Professional Corporation as to (2)
the legality of the shares being registered
6
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23.1 Consent of Buchanan Ingersoll Professional Corporation (2)
(contained in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP (2)
24.1 Power of Attorney (3)
</TABLE>
(1) Filed as an Exhibit to Registrant's registration statement on Form S-4,
filed with the SEC on September 9, 1998, and incorporated by reference herein.
(2) Filed herewith.
(3) Included as part of the signature page to this Registration Statement.
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 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.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) 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 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee
benefit 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
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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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greenwich, State of Connecticut, on this 19th
day of November, 1999.
VDC COMMUNCATIONS, INC.
By:/s/ Frederick A. Moran
-------------------------
Frederick A. Moran
Chairman of the Board, Chief
Executive Officer, Chief
Financial Officer, and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears
below constitutes and appoints Frederick A. Moran, 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 (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, 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, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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/s/ Frederick A. Moran Dated: November 19, 1999
- ------------------------------------ --------------------
Frederick A. Moran
Chairman of the Board, Chief Executive
Officer, Director, and Chief Financial
Officer (Principal Executive, Financial
and Accounting Officer)
/s/ Hussein Elkholy Dated: October 27, 1999
- ------------------------------------ --------------------
Dr. Hussein Elkholy
Director
/s/ James B. Dittman Dated: November 18, 1999
- ------------------------------------ --------------------
James B. Dittman
Director
/s/ Leonard Hausman Dated: November 18, 1999
- ------------------------------------ ---------------------
Dr. Leonard Hausman
Director
9
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<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit Number Page Number in
(Referenced to Rule 0-3 (b)
Item 601 of Sequential
Reg. S-K) Numbering System
Where Exhibit Can
Be Found
<S> <C>
5.1 Opinion of Buchanan Ingersoll Professional Corporation as to
the legality of the shares being registered
23.1 Consent of Buchanan Ingersoll Professional Corporation
(contained in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement)
</TABLE>
10
EXHIBIT NO. 5.1
Opinion of Buchanan Ingersoll Professional Corporation
November 19, 1999
Board of Directors
VDC Communications, Inc.
75 Holly Hill Lane
Greenwich, Connecticut 06830
Gentlemen:
We have acted as counsel to VDC Communications, Inc, a Delaware
corporation (the "Corporation"), in connection with the proposed issuance by the
Corporation of up to 5,000,000 shares of the Corporation's common stock (the
"Common Stock"), pursuant to the terms of the VDC Communications, Inc. 1998
Stock Incentive Plan, as Amended (the "Plan").
In connection with such proposed issuance, we have examined the Plan,
the Certificate of Incorporation of the Corporation, as amended and restated,
the By-laws of the Corporation, as amended and restated, the relevant corporate
proceedings of the Corporation, the Registration Statement on Form S-8 covering
the issuance of the Common Stock, and such other documents, records,
certificates of public officials, statutes and decisions as we consider
necessary to express the opinions contained herein. In the examination of such
documents, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
those original documents of all documents submitted to us as certified or
photostatic copies.
Based on the foregoing, we are of the opinion that when the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission and when the Common Stock has been duly
issued and delivered pursuant to the terms of the Plan, such shares of Common
Stock will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By:/s/ James J. Barnes
---------------------
James J. Barnes
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
VDC Communications, Inc.
Greenwich, Connecticut
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated September
3, 1999, relating to the financial statements and schedules of VDC
Communications, Inc. appearing in the Company's Annual Report on Form 10-K for
the year ended June 30, 1999.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/s/ BDO Seidman, LLP
- --------------------
BDO Seidman, LLP
Valhalla, New York
November 18, 1999
