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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
Gentner Communications Corporation
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(Exact name of registrant as specified in its charter)
Utah 87-0398877
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1825 West Research Way, Salt Lake City Utah 84119
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(Address of principal executive offices) (Zip Code)
1998 Stock Option Plan
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(Full title of the plan)
Susie S. Strohm, Vice President - Finance and Chief Financial Officer,
1825 West Research Way, Salt Lake City, Utah 84119
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(Name and address of Agent for Service)
801-975-7200
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(Telephone number, including area code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share(1) Price(2) Fee(3)
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<S> <C> <C> <C> <C>
Common Stock 1,700,000 shares $3.84 $6,534,375 $1,817
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(1) The maximum offering price per share of the securities is calculated
based on Rule 457(c). The maximum offering price is $3.84 based upon the
average of the high and low price reported in the consolidated reporting
system on May 10, 1999.
(2) The maximum aggregate offering price equals 1,700,000 shares multiplied
by the offering price of $3.84 equaling $6,534,375.
(3) The amount of the Registration Fee equals $1,817. This amount is arrived
at by multiplying the maximum aggregate offering price of $6,534,375 by
.000278.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Gentner Communications Corporation (the "Company") has adopted the 1998
Stock Option Plan (the "Plan"), pursuant to which the Company may grant certain
stock options (each, an "Option Grant") to purchase shares of the Company's
Common Stock to employees, non-employee members of the board of directors, or of
the board of directors of any parent or subsidiary of the Company, and
consultants and other independent advisors who provide services to the Company,
or any parent or subsidiary of the Company. The Common Stock is currently the
only type of stock that the Company is authorized to issue. Holders of Common
Stock are entitled to one vote per share, are entitled to receive dividends (if
declared by the Board), and are entitled to receive the net assets of the
Company upon liquidation. The Plan was effective on June 10, 1998 and will
expire on the earlier of: (i) June 10, 2008, (ii) the date on which all shares
of Common Stock available for issuance under the Plan shall have been issued, or
(iii) the termination of all outstanding options in connection with a major
corporate transaction, such as a merger or sale of all of the Company's assets.
The termination of the Plan will not affect any Option Grants then outstanding.
The documents containing the information specified in this Part I will
be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act of 1933 (the "Securities Act"). Such documents need not be filed
with the Securities and Exchange Commission (the "SEC") either as part of this
registration statement (the "Registration Statement") or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in the Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act (the "Prospectus") .
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ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Company will provide to participants without charge, upon written or
oral request, the documents incorporated by reference in Item 3 of Part II of
the Registration Statement, and these documents are incorporated by reference
into the Prospectus. The documents containing the information specified in this
Part I will be sent or given to employees as specified by Rule 428(b)(1) under
the Securities Act.
Requests for information described in this Part I should be directed to
Susie Strohm, Vice President - Finance, Chief Financial Officer, Gentner
Communications Corporation, 1825 West Research Way, Salt Lake City, Utah 84119,
801-975-7200.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in the
Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the
fiscal year ended June 30, 1998, as filed with the SEC;
(b) the Company's Quarterly Reports on Form 10-QSB for each
fiscal quarter since the filing of the Company's last
Annual Report for the year ended June 30, 1998;
(c) all other reports filed with the SEC pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") since June 30, 1998; and
(d) the description of the Company's Common Stock contained
in the Form 10 Registration Statement filed by the
Company with the SEC under Section 12 of the Exchange
Act, including any amendment or report filed for the
purpose of updating such description.
In addition to the above, all documents subsequently filed by the Company
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 have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in the Registration
Statement and to be a part thereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The final sentence of Article XII of the Company's Articles of
Incorporation reads as follows: "Each person who is now or may become a Director
of this Corporation is hereby relieved from and indemnified against liability
that might otherwise obtain in the event such Director contracts with this
Corporation for the benefit of himself or any firm, association or corporation
in which he may be interested in any way, provided said Director acts in good
faith."
Article V of the Company's Bylaws, adopted August 24, 1993, provides for
indemnification of directors with reference to the Utah Revised Business
Corporation Act (the "Utah Act"). Relevant portions of the Utah Act are
described below. In addition, Section 5.3 of the Bylaws provides that: "The
board of directors may indemnify and advance expenses to any officer, employee
or agent of the corporation who is not a director of the corporation to any
extent consistent with public policy, as determined by the general or specific
actions of the board of directors."
Statutory indemnification of the Company's directors and officers is
governed by Sections 901-909 of the Utah Act. Pursuant to the Utah Act, the
Company may indemnify a director or officer against liability incurred in
connection with any legal proceeding if: (a) his conduct was in good faith; (b)
he reasonably believed that his conduct was in, or not opposed to, the Company's
best interests; and (c) in the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful. Notwithstanding the above,
the Company may not indemnify directors or officers: (a) in connection with a
proceeding by or in the right of the Company in which the director or officer
was adjudged liable to the Company; or (b) in connection with any other
proceeding charging that the director or officer derived an improper personal
benefit and in which he was adjudged liable on that basis. Additionally, if the
proceeding is by or in the right of the Company, the indemnification is limited
to the director's or officer's reasonable expenses incurred in connection with
such proceeding.
Notwithstanding the above, the Company must indemnify a director or
officer who was successful, on the merits or otherwise, in the defense of any
proceeding, or in the defense of any claim, issue, or matter in the proceeding,
to which he was a party because he is or was a director or officer of the
Company. Pursuant to the Utah Act, the Company may pay for or reimburse the
reasonable expenses incurred by a director or officer under certain
circumstances. A court may order indemnification of a director or officer by the
Company, regardless of whether the director or officer met the statutory
standard of conduct set forth above, provided that, if the director or officer
has been adjudged liable, such indemnification is limited to
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reasonable expenses. Non-mandatory indemnification can be made to a director or
officer under the Act only if a determination is made in each instance by either
the board of directors or the shareholders that the statutory standard of
conduct permitting indemnification has been met.
Section 11(g) of the Company's 1990 Incentive Plan provides that: "No
member or former member of the Committee or the Company's board of directors
(the "Board") shall be liable for any action or determination made in good faith
with respect to the Plan or any Award granted under it. Each member or former
member of the Committee or the Board shall be indemnified and held harmless by
the Company against all costs or expenses (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the Board)
arising out of any act or omission to act in connection with the Plan to the
extent allowed by law."
Section 9.8 of the Company's 1997 Employee Stock Purchase Plan reads as
follows: "No member or former member of the Committee or the Board shall be
liable for any action or determination made in good faith with respect to the
Plan or any deduction or withholding made under the Plan. Each member or former
member of the Committee or the Board shall be indemnified and held harmless by
the Company against all costs or expenses (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the Board)
arising out of any act or omission to act in connection with the Plan to the
extent allowed by law."
Section 1.2.d. of the Company's 1998 Stock Option Plan provides that:
"Service on the Primary Committee or the Secondary Committee shall constitute
service as a Board member, and members of each such committee shall accordingly
be entitled to full indemnification and reimbursement as Board members for their
service on such committee. No member of the Primary Committee or the Secondary
Committee shall be liable for any act or omission made in good faith with
respect to the Plan or any option grants under the Plan."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Form S-8.
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Exhibit Number Description
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5.1 Opinion of Jones, Waldo, Holbrook & McDonough regarding the
legality of the securities being registered hereunder.
23.1 Consent of Jones, Waldo, Holbrook & McDonough (contained in
Exhibit 5.1 above).
23.2 Consent of Independent Auditors, Ernst & Young LLP.
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ITEM 8. UNDERTAKINGS.
The Company hereby undertakes to do the following:
(a) File, during any period in which it offers or sells securities,
a post-effective amendment to this Registration Statement to:
(1) include any prospectus required by Section 10(a)(3) of the
Securities Act; (2) reflect in the prospectus any facts or
events which individually or together, represent a fundamental
change in the information in this Registration Statement; and
(3) include any additional or changed material information on
the plan of distribution.
(b) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of
securities offered, and the offering of the securities at the
time to be the initial bona fide offering.
(c) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all 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 Salt Lake City, State of Utah, on May 12, 1999.
GENTNER COMMUNICATIONS CORPORATION
Date: May 12, 1999 By: FRANCES M. FLOOD
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Frances M. Flood
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.
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Signature Title Date
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FRANCES M. FLOOD Director, President and May 12, 1999
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Frances M. Flood (principal executive officer)
SUSIE STROHM Vice President - Finance, May 12, 1999
- ----------------------------------- and Chief Financial Officer
Susie Strohm (principal financial and
accounting officer)
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints each of Frances M. Flood and Susie Strohm,
jointly and severally, his true and lawful attorney-in-fact and agent, with full
power of substitution for him and in his name, place, and stead, in any and all
capacities, to sign any or all amendments to this Form S-8 and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Commission, hereby ratifying and confirming all that each said attorney-in-fact
or her substitute or substitutes may do or cause to be done by virtue hereof.
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Signature Title Date
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/s/ EDWARD DALLIN BAGLEY Director May 12, 1999
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Edward Dallin Bagley
/s/ BRAD R. BALDWIN Director May 12, 1999
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Brad R. Baldwin
/s/ EDWARD N. BAGLEY Director May 12, 1999
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Edward N. Bagley
/s/ DWIGHT H. EGAN Director May 12, 1999
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Dwight H. Egan
/s/ K. BRADFORD ROMNEY Director May 12, 1999
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K. Bradford Romney
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EXHIBIT INDEX
Exhibit
No. Description
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5.1 Opinion of Jones, Waldo, Holbrook & McDonough regarding the
legality of the securities being registered hereunder.
23.1 Consent of Jones, Waldo, Holbrook & McDonough (contained in
Exhibit 5.1 above).
23.2 Consent of Independent Auditors, Ernst & Young LLP.
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Exhibit 5.1
[Letterhead of Jones Waldo, Holbrook & McDonough]
May 12, 1999
Gentner Communications Corporation
1825 Research Way
Salt Lake City, UT 84119
Re. SEC Form S-8 Registration Statement for 1998 Stock Option Plan
Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") as it is proposed to be filed by Gentner
Communications Corporation (the "Company") with the Securities and Exchange
Commission (the "SEC") on or about May 12, 1999. The Registration Statement will
register with the SEC 1,700,000 shares of the Company's common stock (the
"Shares") for public trading under the Securities Act of 1993, as amended. The
shares may be issued to employees, non-employee members of the board of
directors of the Company, and of the board of directors of any parent or
subsidiary thereof, and consultants to the Company. In preparing this opinion,
we have examined the Registration Statement, the Plan, the Company's Articles of
Incorporation, and the Company's Bylaws. We have assumed that in each instance
the Shares have been or will be issued pursuant to the terms of the Plan.
Subject to the above qualifications and assumptions, it is our opinion
that, when the Shares are sold in accordance with the Registration Statement,
the Plan, and any grants thereunder, the Shares will be legally issued, fully
paid, and non-assessable. We hereby consent to the inclusion of this opinion as
an exhibit to the Registration Statement.
Very truly yours,
/s/JONES, WALDO, HOLBROOK & McDONOUGH
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Jones, Waldo, Holbrook & McDonough
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 33-xxxxxx) pertaining to the 1998 Stock Option Plan of Gentner
Communications Corporation of our report dated July 31, 1998 , with respect to
the financial statements of Gentner Communications Corporation included in its
Annual Report (Form 10-KSB) for the year ended June 30, 1998, filed with the
Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
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Ernst & Young LLP
May 7, 1999
Salt Lake City, UT
