As filed with the Securities and Exchange Commission on November 14, 2000.
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ELCOTEL, INC.
(Exact name of issuer as specified in its charter)
Delaware 59-2518405
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6428 Parkland Drive, Sarasota, Florida 34243
(Address of principal executive offices)
Elcotel, Inc. 1991 Stock Option Plan
(Full title of the plan)
William H. Thompson
Senior Vice President, Administration & Finance,
Chief Financial Officer and Secretary
Elcotel, Inc.
6428 Parkland Drive
Sarasota, Florida 34243
(Name and address of agent for service)
(941) 758-0389
(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
<PAGE>
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of
Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be be Offering Price Aggregate Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee (2)
---------- -------------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par 500,000 $.719 $359,500 $94.90
value $.01 per share shares
</TABLE>
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, 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 November 10, 2000, which was $.719 per share.
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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, 2000;
(b) The quarterly reports of the Company on Form 10-Q for the quarter
ended June 30, 2000 and all other reports filed pursuant to Section
13(a) or 15(d) of the Exchange Act since March 31, 2000;
(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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<PAGE>
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.
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;
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<PAGE>
(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 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 November 14, 2000.
ELCOTEL, INC.
By: /s/ Michael J. Boyle
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Michael J. Boyle
President, Chief Executive Officer and
Chairman of the Board
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
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By: /s/ Michael J. Boyle President & Chief November 14, 2000
--------------------------- Executive Officer,
Michael J. Boyle Director and Chairman
of the Board
By: /s/ William H. Thompson Senior Vice President, November 14, 2000
--------------------------- Chief Financial Officer,
William H. Thompson Secretary (principal
financial officer)
By: /s/ Scott M. Klein Controller (principal November 14, 2000
--------------------------- accounting officer)
Scott M. Klein
By: /s/ Charles H. Moore Director November 9, 2000
---------------------------
Charles H. Moore
By: /s/ Thomas E. Patton Director November 10, 2000
---------------------------
Thomas E. Patton
By: /s/ Mark L. Plaumann Director November 14, 2000
---------------------------
Mark L. Plaumann
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Certificate of Incorporation, as amended (incorporated by reference to
Exhibit 3.1 to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1999)
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, 1992)
5.1 Opinion of Schnader Harrison Segal & Lewis LLP (filed herewith)
23.1 Consent of Deloitte & Touche LLP (filed herewith)
23.2 Consent of Schnader Harrison Segal & Lewis LLP (included in Exhibit
5.1)
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