As filed with the Securities and Exchange Commission on November 7, 1997
Registration Statement No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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fonix corporation
(Exact name of registrant as specified in its charter)
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DELAWARE 22-2994719
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1225 Eagle Gate Tower
60 East South Temple Street
Salt Lake City, Utah 84111
(801) 328-0161
(Address, including zip code, and
telephone number, including area code,
of registrant's principal
executive offices)
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JEFFREY N. CLAYTON, ESQ.
VICE PRESIDENT/LEGAL
fonix corporation
1225 Eagle Gate Tower
60 East South Temple Street
Salt Lake City, Utah 84111
(801) 328-0161
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
JEFFREY M. JONES, ESQ.
DURHAM, EVANS, JONES & PINEGAR, P.C.
50 SOUTH MAIN STREET, SUITE 850
SALT LAKE CITY, UTAH 84111
Approximate date of commencement of proposed sale to the public: from
time to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [X] 333-31425.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________.
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Aggregate Aggregate Amount of
Title of Class of Securities To be Price Offering Registration
to be Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 279,643 shares(1) $6.250 (2) $ 1,747,768 (2) $ 529.63
$.0001 par value per share
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</TABLE>
(1) Represents all or a portion of Shares issuable upon conversion of
Series B Convertible Preferred Stock ("Series B Preferred") issued
October 24, 1997, which Series B Preferred has an aggregate stated
value of $2,500,000, which amount is convertible into that number of
shares of Common Stock as shall be determined by dividing the stated
value of the Series B Preferred to be converted by the lesser of
(i)$5.9813 and (ii) the average closing bid price of the Common Stock
for the 5 trading days preceding the date of conversion, multiplied by
90% for any conversion on or prior to the 120th day after the issue
date and 87.5% for any conversion thereafter. The actual number of
shares of Common Stock upon conversion of entire amount of Series B
Preferred could differ substantially.
(2) The fee is estimated pursuant to Rule 457(c) under the Act on the
basis of the last reported sale price reported on the Nasdaq SmallCap
Market on November 4, 1997.
Pursuant to Rule 416, there are also registered hereby such additional
indeterminate number of shares of such Common Stock as may become issuable
as dividends or to prevent dilution resulting from stock splits, stock
dividends or similar transactions or as the result of floating rate
conversion mechanisms as are set forth in the terms of the debentures and
preferred stock referred to above.
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The contents of the Registrant's Registration Statement on Form S-3
(File No. 333-31425), as amended by Post-Effective Amendments Nos. 1 and 2
and with the changes to the Prospectus included in the Registration
Statement as indicated in the Prospectus filed under Rule 424(b)(3) on
November 5, 1997, with respect to 1,280,928 shares of the Registrant's
Common Stock, par value $.0001 per share, are incorporated by reference into
this Registration Statement filed pursuant to Rule 462(b) of the Securities
Act of 1933, as amended.
<PAGE>
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-3 and has duly caused this
Registration Statement filed pursuant to Rule 462(b) of the Act to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Salt Lake City, State of Utah, on this 6th day of November, 1997.
fonix corporation
By: /s/ Thomas A. Murdock
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Thomas A. Murdock
President,
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on November 6, 1997, by the following
persons in the capacities indicated.
Signature Title
- ----------- ----------------------
* Chairman and Chief Executive Officer
- -------------------------- (Principal Executive Officer)
Stephen M. Studdert
* Executive Vice President Finance
- -------------------------- (Principal Financial Officer)
Roger D. Dudley
* Chief Financial Officer (Principal
- -------------------------- Accounting Officer)
Douglas L. Rex
Director
- --------------------------
Alan C. Ashton, Ph.D.
* Director
- --------------------------
Ambassador Joseph Verner Reed
* Director
- --------------------------
John A. Oberteuffer, Ph.D.
* Director
- --------------------------
Rick D. Nydegger
* Director
- --------------------------
James B. Hayes
* Director
- --------------------------
Thomas A. Murdock
*By /s/ THOMAS A. MURDOCK
- --------------------------------
Thomas A. Murdock
Attorney-in-Fact
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE OR FOOTNOTE
- ------------ ------------------------------------------------------------------ ----------------
<S> <C> <C>
5.1 Opinion of Durham, Evans, Jones & Pinegar, P.C....................
23.1 Consent of Deloitte & Touche LLP..................................
23.2 Consent of Pritchett, Siler & Hardy, P.C. ........................
23.3 Consent of Durham, Evans, Jones & Pinegar, P.C. .................. (1)
24.1 Power of Attorney................................................. (2)
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</TABLE>
(1) Contained within Exhibit 5.1.
(2) Incorporated by reference to the Registrant's Registration Statement on
Form S-3 (Commission File No. 333-31425).
Exhibit 5
Durham, Evans, Jones & Pinegar
Attorneys & Counselors at Law
Key Bank Tower
50 South Main, Suite 850
Salt Lake City, Utah 84144
Telephone
(801) 538-2424
November 6, 1997 Facsimilie Number
(801) 538-2425
Board of Directors
fonix corporation
1225 Eagle Gate Tower
60 East South Temple Street
Salt Lake City, Utah 84111
Gentlemen:
We have acted as counsel to fonix corporation, a Delaware corporation
(the "Company"), in the preparation of a Registration Statement (the "Prior
Registration Statement") on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"), filed with the Securities and Exchange
Commission (the "Commission") on July 16, 1997 (File No. 333-41325), and in
the preparation and filing of post-effective amendment nos. 1 and 2 to the
Prior Registration Statement, which Prior Registration Statement, as amended
to date, covers a total of 1,280,928 shares of the Company's common stock, par
value $.0001 per share, that are either (i) issued upon the conversion of the
Company's Series B 5% Convertible Debentures in the aggregate principal amount
of $3,000,000, (ii) issuable upon the exercise of a common stock purchase
warrant entitling the holder thereof to purchase 250,000 shares of the
Company's common stock at the exercise price of $8.48 per share, or (iii) are
issuable upon the conversion or partial conversion of 125,000 shares of the
Company's Series B Convertible Preferred Stock ("Series B Preferred Stock").
We have also acted as counsel to the Company in the preparation of a
registration statement on Form S-3 filed under Rule 462(b) of the Securities
Act (the "Rule 462(b) Registration Statement") covering an additional
$1,747,768 in proposed estimated maximum aggregate offering price of common
stock issuable upon conversion of Series B Preferred Stock (the "Additional
Shares").
We have examined the Company's Certificate of Incorporation, as amended
to date, and the Company's By-Laws, as amended to date, and have examined and
relied on the originals, or copies certified to our satisfaction, of such
records of meetings, written actions in lieu of meetings, or resolutions
adopted at meetings, of the directors and stockholders of the Company, all as
provided to us by the Company, and such other documents and instruments as in
our judgment are necessary or appropriate to enable us to render the opinions
expressed below.
<PAGE>
fonix corporation
November 6, 1997
Page 2
_____________________
In our examination of the foregoing documents, we have assumed (i) the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals, (ii) the conformity to the originals of all documents
submitted to us as certified or photostatic copies, (iii) the authenticity of
the originals of the latter document, and (iv) the legal competence of all
signatures to such documents.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the State of Utah, and the federal laws of the
United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Additional Shares, when issued and paid for upon the conversion of the Series
B Preferred Stock in accordance with the terms of the certificate of
designation of rights and preferences on file with the Secretary of State of
Delaware, will be duly authorized and validly issued, fully paid and
non-assessable.
It is our understanding that this opinion is to be used only in
connection with the offer and sale of the Additional Shares while the Rule
462(b) Registration Statement is in effect.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Rule 462(b) Registration Statement in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and
to the use of our name therein and in the related Prospectus under the caption
"Legal Matters." In giving such consent, we do not hereby admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission.
Very truly yours,
/S/ Durham, Evans, Jones & Pinegar P.C.
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DURHAM, EVANS, JONES & PINEGAR, P.C.
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of fonix(TM) corporation on Form S-3 pursuant to Rule 462(b) of our report
dated March 28, 1997, appearing in and incorporated by reference in the
Annual Report on Form 10-K of fonix(TM) corporation for the year ended
December 31, 1996 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Salt Lake City, Utah
November 7, 1997
Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement of fonix corporation on Form S-3 pursuant to Rule 462(b) of our
report dated March 4, 1996, except as to note 12, as to which the date is
March 28, 1997, filed as an exhibit to the Company's Annual Report on Form
10-KSB for the year ended December 31, 1996.
/s/ Pritchett, Siler & Hardy, P.C.
Pritchett, Siler & Hardy, P.C.
(formerly Peterson, Siler & Stevenson, P.C.)
Salt Lake City, Utah
November 6, 1997
