As filed with the Securities and Exchange Commission on February 19, 1998.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
ELCOTEL, INC.
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(Exact name of issuer as specified in its charter)
Delaware 59-2518405
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6428 Parkland Drive, Sarasota, Florida 34243
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(Address of principal executive offices)
Elcotel, Inc. Directors Stock Option Plan
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(Full title of the plan)
Ronald M. Tobin
Vice President and Chief Financial Officer
Elcotel, Inc.
6428 Parkland Drive
Sarasota, Florida 34243
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(Name and address of agent for service)
(941) 758-0389
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(Telephone number, including area code, of agent for service)
Copies to:
Larry P. Laubach, Esquire
Schnader, Harrison, Segal & Lewis LLP
Suite 3600
1600 Market Street
Philadelphia, Pennsylvania 19103
Telephone: (215) 751-2360
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______________________________________________________________________________
CALCULATION OF REGISTRATION FEE
==============================================================================
Proposed
Title of Maximum Proposed
Securities Amount to Offering Maximum
to be be Price Aggregate Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee (2)
- ---------- -------------- ------------- ------------------ ------------
Common Stock, 50,000 $5.75 $287,500 $84.81
par value shares
$.01 per share
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(1) Pursuant to Rule 416(a), this Registration Statement also covers any
additional shares of Common Stock which become issuable under the Elcotel,
Inc. 1991 Stock Option Plan as a result of stock splits, stock dividends or
similar transactions.
(2) Calculated solely for the purpose of determining the registration fee in
accordance with Rule 457(h), based upon the average of the high and low
prices of a share of Common Stock of Elcotel, Inc. on the Nasdaq National
Market on February 18, 1998, which was $5.75 per share.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference in the Registration
Statement:
(a) The annual report of the Company on Form 10-K for the
year ended March 31, 1997 (as amended by Form 10-K/A, Amendment No. 1,
filed July 2, 1997 and Form 10-K/A, Amendment No. 2, filed July 10,
1997);
(b) The quarterly reports of the Company on Form 10-Q for the
quarters ended June 30, 1997, September 30, 1997, and December 31, 1997
and all other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since March 31, 1997;
(c) The Description of Securities contained in Item 1 of the
Form 8-A dated November 21, 1986, filed with the Securities and Exchange
Commission on November 26, 1986.
In addition, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, 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
a part hereof from the date of filing of such documents.
Any statement contained herein or 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 which also is or is deemed to be
incorporated by reference herein modifies or supersedes such earlier
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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL") provides that a corporation has the power to
indemnify a director, officer, employee or agent of the corporation and
certain other persons serving at the request of the corporation in
related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he or she is or is
threatened to be made a party by reason of such position, if such person
has acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, and, in
any criminal proceeding, if such person had no reasonable cause to
believe his or her conduct was unlawful; provided that, in the case of
actions brought by or in the right of the corporation, no
indemnification may be made with respect to any matter as to which such
person has been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The Company's Bylaws provide that it shall indemnify its
officers and directors to the fullest extent permitted by the Delaware
General Corporation Law against expenses, judgments, fines and amounts
paid in settlement reasonably incurred by such person in connection with
any legal action against such person by reason of the fact that such
person is or was a director, officer or employee of the Company or
served at the request of the Company as an officer or director of
another entity if such person acted in good faith and in a manner such
person reasonably believed to be in, or not opposed to, the best
interests of the Company and with respect to any criminal action, such
person had no reasonable cause to believe his conduct was unlawful.
The Company's Certificate of Incorporation contains a
provision limiting directors' liability under certain circumstances,
which provides that a director is not personally liable to the
corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability to the extent
provided by applicable law (i) for any breach of a 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) under Section 174 of the Delaware
General Corporation Law (which deals with willful or negligent payment
of unlawful dividends or stock redemptions), or (iv) for any transaction
from which the director derived an improper personal benefit. Statutory
authority for such provision is contained in Section 102(b)(7) of the
DGCL.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits
The exhibits required by Item 601 of Regulation S-K and this
item are included following the Exhibit Index at Page E-1, all of which
are incorporated herein by reference.
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<PAGE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes to:
(1) File, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
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;
and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the Plan.
(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 (and, where
applicable, each filing of the 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
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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.
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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 City of Sarasota,
State of Florida on February 19, 1998.
ELCOTEL, INC.
By:/s/ Tracey L. Gray
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Tracey L. Gray
President and Chief Executive Officer
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.
/s/ Tracey L. Gray President, Chief February 19, 1998
- ---------------------------- Executive Officer and
Tracey L. Gray Director (Principal
Executive Officer)
/s/ C. Shelton James Chairman of the Board February 19, 1998
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C. Shelton James
/s/ Dwight Jasmann Director February 19, 1998
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Dwight Jasmann
/s/Charles H. Moore Director February 19, 1998
- ----------------------------
Charles H. Moore
/s/ Thomas E. Patton Director February 19, 1998
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Thomas E. Patton
/s/ David R. A. Steadman Director February 19, 1998
- ----------------------------
David R.A. Steadman
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/s/ Mark L. Plaumann Director February 19, 1998
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Mark L. Plaumann
/s/ Joseph M. Jacobs Director February 19, 1998
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Joseph M. Jacobs
/s/ Ronald M. Tobin Vice President and Chief February 19, 1998
- ---------------------------- Financial Officer
Ronald M. Tobin (Principal Financial and
Accounting Officer)
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-18, File No.
33-8565)
4.2 By-Laws, as amended (incorporated by reference
to Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for year ended March 31,
1987)
5.1 Opinion of Schnader, Harrison, Segal & Lewis LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Schnader, Harrison, Segal & Lewis LLP
(included in Exhibit 5.1)
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EXHIBIT 5.1
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[SCHNADER HARRISON SEGAL & LEWIS, LLP LETTERHEAD]
February 19, 1998
Board of Directors
Elcotel, Inc.
6428 Parkland Drive
Sarasota, Florida 34243
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Elcotel, Inc. ("Elcotel")
in connection with the preparation and filing with the Securities
and Exchange Commission under the Securities Act of 1933 of a
Registration Statement on Form S-8 relating to shares of common
stock of Elcotel (the "Shares") covered by the options granted to
optionees under the Elcotel, Inc. Directors Stock Option Plan
(the "Options").
As counsel for Elcotel, we have examined such corporate
records and other documents of Elcotel and considered such
questions of law as we have deemed necessary or appropriate for
purposes of this opinion. On the basis of such examination, we
are of the opinion that the Shares have been duly authorized, and
when duly issued against payment of the purchase price therefor
pursuant to the Options and due exercise of the options
thereunder, will be validly issued, fully paid and
non-assessable.
We hereby consent to the inclusion of this opinion as
Exhibit 5.1 to the Registration Statement and the reference to
our Firm appearing on the cover of the Registration Statement.
Very truly yours,
/s/ Schnader Harrison Segal & Lewis, LLP
_________________________________________
SCHNADER HARRISON SEGAL & LEWIS LLP
EXHIBIT 23.1
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Elcotel, Inc.on Form S-8 (related to the Elcotel,
Inc. Directors Stock Option Plan) of our report dated June 23,
1997, appearing in the Annual Report on Form 10-K of Elcotel,
Inc. for the year ended March 31, 1997.
/s/ DELOITTE & TOUCHE LLP
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DELOITTE & TOUCHE LLP
Tampa, Florida
February 19,1998
