As filed with the Securities and Exchange Commission on July 2, 1996
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PERIPHONICS CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 11-2699509
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
4000 Veterans Memorial Highway
Bohemia, New York 11716
(516) 467-0500
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
Peter J. Cohen
Periphonics Corporation
4000 Veterans Memorial Highway
Bohemia, New York 11716
(516) 468-9000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
David L. Frankel, Esq.
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
(516) 663-6514
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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, check the following box: [ ]
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. [ ]
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. [ ]
CALCULATION OF REGISTRATION FEE
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Title of each class Number of shares Proposed maximum Proposed maximum
of securities to be registered offering price aggregate offering Amount of
to be registered per share (1) price (1) registration fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 39,125 $32.375 $1,266,672 $437
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(1) Estimated solely for purposes of calculating the registration fee and
based on the average bid and asked price as of a specified date within five
business days prior to the date of filing this Registration Statement, pursuant
to Rule 457(c).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PERIPHONICS CORPORATION
CROSS-REFERENCE SHEET SHOWING LOCATION IN PROSPECTUS OF
INFORMATION REQUIRED BY ITEMS IN PART I OF FORM S-3
<TABLE>
<CAPTION>
Item Location in Prospectus
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<S> <C>
1. Forepart of Registration Statement and Outside
Front Cover Pages of Prospectus.............................. Outside front cover page
2. Inside Front and Outside Back Cover Pages of
Prospectus................................................... Inside front and outside back cover pages
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges.................................... The Company; Risk Factors
4. Use of Proceeds.............................................. Not Applicable
5. Determination of Offering Price.............................. Outside front cover page
6. Dilution..................................................... Not Applicable
7. Selling Security Holders..................................... Selling Stockholder
8. Plan of Distribution......................................... Plan of Distribution
9. Description of Securities to be Registered.................. Not Applicable
10. Interests of Named Experts and Counsel....................... Experts; Legal Matters
11. Material Changes............................................. Not Applicable
12. Incorporation of Certain Information by Reference............ Documents Incorporated by Reference
13. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities............... Not Applicable
</TABLE>
<PAGE>
PRELIMINARY PROSPECTUS DATED JULY 2, 1996, SUBJECT TO COMPLETION
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
PERIPHONICS CORPORATION
39,125 Shares of Common Stock
The 39,125 shares of Common Stock to which this Prospectus relates (the
"Shares") may be sold by the selling stockholder named herein (the "Selling
Stockholder") from time to time in transactions on the Nasdaq Stock Market at
prices then prevailing, or in negotiated transactions at negotiated prices, or a
combination thereof. The Selling Stockholder acquired the Shares being offered
through the exercise of a warrant to purchase 39,125 shares of Common Stock
granted to the Selling Stockholder by Periphonics Corporation (the "Company") in
connection with the acquisition in October, 1990 of certain assets of the
Selling Stockholder by the Company's wholly-owned subsidiary, Periphonics Voice
Processing Systems Limited. See "Selling Stockholder" and "Plan of
Distribution." The Company will not receive any proceeds from the Shares sold by
the Selling Stockholder.
The Common Stock is traded on the Nasdaq Stock Market's National Market
under the symbol "PERI." On June 26, 1996, the closing price of the Common
Stock, as reported by the Nasdaq Stock Market, was $32.75 per share.
--------------------
See "Investment Considerations" on page 5 for a discussion of certain
factors that should be considered by prospective purchasers of the Shares
offered hereby.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is __________, 1996
<PAGE>
No dealer, sales representative or other person has been authorized to give
any information or to make any representation in connection with this offering
other than those contained in this Prospectus, and if given or made, such
information or representation must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy the shares of Common Stock offered hereby by
anyone in any jurisdiction in which such an offer or solicitation is not
authorized, or in which the persons making such an offer or solicitation is not
qualified to do so, or to any person to whom it is unlawful to make such an
offer or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that the
information contained herein is correct as of any date subsequent to its date.
--------------------
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act"), and in accordance therewith, files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the Commission's regional offices located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and Northwestern Atrium Center, 500
West Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained at prescribed rates from the Public Reference Section of the
Commission, 450 Fifth Street, NW, Washington, D.C. 20549. The Company's Common
Stock is quoted on the Nasdaq Stock Market and reports, proxy statements and
other information concerning the Company may also be inspected and copied at the
offices of the Nasdaq Stock Market, Inc., 1735 K Street, NW, Washington, D.C.
20006.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed by the Company with the Commission
are hereby incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-K for the year ended May 31, 1995;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters ended August
31, November 30, 1995 and February 29, 1996;
(3) The Company's Report on Form 10-C reflecting the increase in the number of
shares of Common Stock outstanding as a result of a public offering of
Common Stock on November 17, 1995;
(4) The Company's Proxy Statement dated September 27, 1995;
(5) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A, as filed with the Commission on
February 21, 1995.
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All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which removes from
registration all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained 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 statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
The Company undertakes to provide without charge to each person to whom a
Prospectus is delivered, upon oral or written request of such person, a copy of
any document that has been incorporated in this Prospectus by reference.
Requests for such documents should be directed to the Company at its offices
located at 4000 Veterans Memorial Highway, Bohemia, New York 11716 (telephone
Number (516) 467-0500), Attention: Secretary.
THE COMPANY
The Company develops, markets and supports high performance, interactive
voice response ("IVR") systems. The Company's IVR systems are based on
industry-standard open architecture computer hardware and operating system
software which, in combination with its own proprietary IVR technology, address
the needs of mid-size and large scale customer installations. The Company is an
established leader within the mid-size and large scale segments of the IVR
industry, having installed systems with over 100,000 ports since 1988, and with
over 25 years of experience serving the IVR market. The Company's IVR systems
enable callers to use a touch-tone telephone to access information in an
organization's computer database for a variety of transactions including
accessing bank, mutual fund, or brokerage account data; checking the status of
insurance claims or tax filings; obtaining loan or credit card rates;
registering for college courses; and retrieving descriptions of particular
products or services.
The Company was originally incorporated in Delaware in December 1969. On
January 31, 1983, the Company was dissolved and operated as a division of
Gilbarco, Inc., a wholly-owned subsidiary of Exxon Corporation. On July 26,
1984, the Company was reincorporated in Delaware and in 1986, 4000 VMH Corp., a
company owned by persons who were then senior executives of the Company,
purchased all of the outstanding Common Stock of the Company from Exxon
Corporation. In March, 1995 4000 VMH Corp. was merged with and into the Company.
As used in this Prospectus, the terms "Periphonics" and the "Company" refer to
Periphonics Corporation and its subsidiaries. The Company's principal facilities
and executive offices are located at 4000 Veterans Memorial Highway, Bohemia,
New York 11716 and its telephone number is (516) 468-9000.
4
<PAGE>
INVESTMENT CONSIDERATIONS
In addition to the other information contained in this Prospectus, the
following investment considerations should be considered carefully by
prospective investors in evaluating the Company, its business and an investment
in the shares of Common Stock offered by this Prospectus.
Variability of Quarterly Results; Limited Backlog. The Company's quarterly
operating results may fluctuate as a result of a variety of factors, including
the length of the sales cycle, the timing of orders from and shipments to
customers, delays in development and customer acceptance of custom software
applications, product development expenses, new product introductions or
announcements by the Company or its competitors, levels of market acceptance for
new products and the hiring and training of additional staff as well as general
economic conditions. Historically, the size and timing of the Company's sales
transactions have varied substantially from quarter to quarter, and the Company
expects such variations to continue in future periods. The Company is typically
able to deliver an IVR system within 60 days of receipt of the order and
therefore, does not customarily have a significant long-term backlog. Because a
significant portion of the Company's overhead is fixed in the short-term, the
Company's results of operations may be materially adversely affected if revenues
fall below the Company's expectations. Generally, the Company's inventory of
computer hardware is determined by the Company's forecasts of sales during
future periods. If management's forecasts of product sales and product mix prove
to be substantially inaccurate, the Company may not have the necessary inventory
available to deliver systems in a timely manner which may have a material
adverse effect on the Company's results of operations during such period.
Highly Competitive Market Environment. The market for IVR systems is highly
competitive. Certain of the Company's competitors have substantially greater
financial, technical, marketing and sales resources than the Company. There can
be no assurance that the Company's present or future competitors will not exert
increased competitive pressures on the Company. In particular, the Company may
in the future experience pricing pressures as the markets in which it competes
mature, as new technologies are introduced or for other reasons, and such price
competition could adversely affect the Company's market share and results of
operations. In addition, many suppliers of voice mail systems and
telecommunications suppliers have added IVR capabilities to some of their
product offerings and offer IVR systems as a component or add-on of an overall
sale of a voice mail system or a telecommunications switch. Although the Company
believes it has certain marketing, technical and other advantages over many of
its competitors, maintaining such advantages will require continued investment
by the Company in product innovation and development, as well as in sales,
marketing and customer support. There can be no assurance that the Company will
be successful in such efforts. If the Company is unable to maintain such
advantages, it may have a material adverse effect on the Company's results of
operations.
Risk of Rapid Technological Change and New Product Introduction. The market
for IVR systems is characterized by rapid continual technological change and
improvements in hardware and software technology and in the features and
capabilities of IVR systems. The Company's future success depends upon its
ability to introduce new products and to add new features and enhancements to
its existing systems that keep pace with technological and market developments,
and that address the increasingly sophisticated and demanding needs of its
customers. In order to remain competitive, the Company expects to continue to
expend significant resources for research and development. There can be no
assurance that the Company will be successful in developing and marketing, on a
timely basis, product modifications or enhancements or new products that respond
to technological
5
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advances by others, or that such new or enhanced products or features will
adequately and competitively address the needs of the marketplace.
A portion of sales of the Company's IVR systems depend, in part, upon
customers' belief that the Company's UNIX and RISC-based systems offer more
performance, features and benefits than PC-based systems offered by certain of
the Company's competitors. As PC hardware and software become more powerful,
however, the capabilities of PC-based IVR systems are likely to increase and may
become increasingly competitive alternatives to the Company's products in
mid-size and large scale installations.
The Company's software products, like software programs generally, may
contain undetected errors or bugs when introduced, or as new versions are
released. While the Company's current products have not experienced post-release
software errors that have had a significant financial or operational impact on
the Company, there can be no assurance that such problems will not occur in the
future, particularly as the Company's IVR systems continue to become more
complex and sophisticated. Such defective software may result in loss of or
delay in market acceptance of the Company's products, warranty liability or
product recalls.
Risk of International Sales. System sales to customers outside the U.S.
accounted for approximately 30%, 34%, 35% and 37% of the Company's total system
sales in the fiscal years ended May 31, 1993, 1994 and 1995 and the nine months
ended February 29, 1996, respectively. The Company's international business is
subject to a number of risks, including compliance with special national
telecommunications standards and regulatory requirements, export regulations,
currency exchange rates, tariffs and other barriers, difficulties in staffing
and managing foreign subsidiary operations, potentially adverse tax
consequences, longer payment cycles, greater difficulty in accounts receivable
collections and specialized inventory requirements applicable to particular
foreign countries. There can be no assurance that these factors will not have an
adverse impact on the Company's future international sales or operating results.
The Company does not currently engage in international currency hedging
transactions. To the extent the Company is unable to match revenue received in
foreign currencies with expenses paid in the same currency, it is exposed to
possible losses on international currency transactions. Included in the
Company's net earnings of $3.2 million for the fiscal year ended May 31, 1995
was a foreign exchange gain of approximately $0.1 million. Such foreign exchange
gain consisted primarily of unrealized foreign exchange gains and losses
resulting from the currency remeasurement of the financial statements (primarily
inventories, accounts receivable and intercompany debt) of the Company's foreign
subsidiaries into U.S. dollars.
Risk of Industry Concentration. In fiscal 1995 and for the nine months
ending February 29, 1996, approximately 37% of the Company's worldwide system
sales were to customers in the telecommunications industry and 26% and 23% of
system sales were to U.S. customers within the financial services industry.
Although the Company is broadening its vertical market focus to include
additional industries such as government, higher education, healthcare services,
transportation, electric and water utilities and distribution companies, it
expects that it will continue to derive a substantial percentage of its system
sales from telecommunications and financial services businesses. Accordingly,
unfavorable economic conditions or factors that relate to these industries,
particularly any such conditions that might result in reductions in capital
expenditures by the Company's target customers, could have a material adverse
affect on the Company's results of operations. During fiscal 1995 and the nine
months ended February 29, 1996, sales to governmental customers
6
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represented 12% and 16%, respectively, of system sales. Future reductions in the
budgets of government entities could result in reductions in capital
expenditures by these potential customers. In addition, the Company has
experienced longer payment cycles with its government customers than it
typically has with customers in other vertical markets.
Limited Protection of Proprietary Technology. The Company's success is
heavily dependent upon its proprietary software technology. The Company has no
patents; consequently it relies on a combination of copyright, trademark and
trade secret laws, employee and third-party non-disclosure agreements, and
license agreements to protect its proprietary software technology. Nonetheless,
there can be no assurance that the steps taken by the Company to protect its
proprietary rights will be adequate to prevent misappropriation of such rights
or that third parties will not independently develop functionally equivalent or
superior software technology. The Company from time to time receives
correspondence alleging that its products may infringe patents held by third
parties. The Company believes that its products and other proprietary rights do
not infringe the proprietary rights of third parties. There can be no assurance,
however, that third parties will not assert infringement claims against the
Company in the future or that any such claims will not require the Company to
enter into license arrangements or result in protracted and costly litigation,
regardless of the merits of such claims. There also can be no assurance that the
Company will be able to obtain licenses to disputed third party technology or
that such licenses, if available, would be available on commercially reasonable
terms. The Company is aware that certain segments of the voice processing
industry, particularly voice mail/voice messaging systems, are affected by
active and costly litigation, and there can be no assurance that as the
Company's IVR systems evolve and provide features which extend their uses and
capabilities, possibly to include certain voice mail/voice messaging features,
the Company will not become involved in, or otherwise be affected by, litigation
which may or may not be meritorious.
Dependence on Suppliers. In certain instances, despite the availability of
multiple supply sources, the Company elects to procure certain components or
parts from a single source to maintain quality control or to develop a strategic
relationship with a supplier. Although the Company has entered into long-term
supply contracts with certain of its vendors, the Company has no assurance that
components and parts will be available as required, or that prices of such
components and parts will not increase. If the Company were to experience
significant delays, interruptions, discontinuations or reductions in the supply
of certain components and parts purchased from suppliers, the Company's results
of operations could be materially adversely affected.
Dependence on Key Personnel. The Company's success during the foreseeable
future will depend largely upon the continued services of its executive
officers, each of whom has entered into an employment agreement with the
Company. Each employment agreement contains non-competition covenants that
extend for a period of up to two years following termination of employment. The
Company does not have key-man life insurance on its executive officers. The
Company's success also depends in part on its ability to attract and retain
qualified managerial, technical and sales and marketing personnel. The Company's
results of operations could be materially adversely affected if the Company were
unable to attract, hire, assimilate and train these personnel in a timely
manner.
7
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SELLING STOCKHOLDER
The following table sets forth certain information with respect to the
shares of the Company's Common Stock beneficially owned and being offered hereby
by the Selling Stockholder:
Shares Beneficially
Name Owned Prior to Offering Shares Being Offered
- ---- ----------------------- --------------------
Ascom Telecommunications
Limited 39,125 39,125
The Selling Stockholder acquired the shares being offered through the
exercise of a warrant to purchase 39,125 shares of Common Stock granted to the
Selling Stockholder by the Company in connection with the acquisition in October
1990 of certain assets of the Selling Stockholder by the Company's wholly-owned
subsidiary, Periphonics Voice Processing Systems Limited.
PLAN OF DISTRIBUTION
The Selling Stockholder may sell the Shares from time to time through
dealers or brokers in transactions on the Nasdaq National Market at prices then
prevailing, or directly to one or more purchasers in negotiated transactions at
negotiated prices, or in a combination thereof. The Selling Stockholder and any
dealers or brokers that participate in such distribution may be deemed
"underwriters" within the meaning of the Securities Act and any commissions or
discounts received by any such dealer or broker may be deemed "underwriting
compensation." The Selling Stockholder has been advised that it is subject to
the applicable provisions of the Exchange Act, including, without limitation,
Rules 10b-5, 10b-6 and 10b-7 thereunder.
LEGAL MATTERS
The validity and issuance of the Shares offered hereby will be passed upon
for the Company and the Selling Stockholder by Ruskin, Moscou, Evans &
Faltischek, P.C., Mineola, New York.
EXPERTS
The financial statements and related financial statement schedules
incorporated in this Prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended May 31, 1995 have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and has been so incorporated in reliance upon the report of
such firm given upon their authority as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Other Expenses of Issuance and Distribution
The following table sets forth the various expenses payable in connection
with the sale and distribution of the securities being registered, all of which
will be paid by the Selling Stockholder.
Total
-----
SEC registration fee.................................. $ 437
Legal fees and expenses............................... 5,000
Accounting fees and expenses.......................... 4,000
Miscellaneous......................................... 1,563
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Total............................................ $11,000
=======
Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify its Directors and officers and to purchase insurance with respect
to liability arising out of their capacity or status as Directors and officers
provided that this provision shall not eliminate or limit the liability of a
Director (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) arising under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
The Delaware General Corporation Law provides further that the
indemnification permitted thereunder shall not be deemed exclusive of any other
rights to which the Directors and officers may be entitled under the Company'
By-Laws, any agreement, vote of shareholders or otherwise.
The Company's Amended and Restated Certificate of Incorporation eliminates
the personal liability of Directors and officers to the fullest extent permitted
by Section 102(b)(7) of the Delaware General Corporation Law.
II-1
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The effect of the foregoing is to require the Company to indemnify its
officers and Directors for any claim arising against such persons in their
official capacities if such person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful.
The Company carries insurance providing indemnification, under certain
circumstances, to all of its directors and officers for claims against them by
reason of, among other things, any act or failure to act in their capacities as
directors or officers. No sums have been paid to any past or present director or
officer of the Company under this or any prior indemnification insurance policy.
The Company has also entered into Indemnity Agreements with all of its
directors and executive officers. The Indemnity Agreements provide for
indemnification of the Company's directors and executive officers to the fullest
extent permitted by the provisions of the General Corporation Law of the State
of Delaware. The Indemnity Agreements also provide that the Company will pay any
costs which an indemnitee actually and reasonably incurs because of any claims
made against him by reason of the fact that he is or was a director or officer
of the Company, except that the Company is not obligated to make any payment
which the Company is prohibited by law from paying as indemnity, or where (a) a
final determination is rendered on a claim based upon the indemnitee's obtaining
a personal profit or advantage to which he was not legally entitled; (b) a final
determination is rendered on a claim for an accounting of profits made in
connection with a violation of Section 16(b) of the Securities Exchange Act of
1934, or similar state or common law provisions; (c) a claim where the
indemnitee was adjudged to be deliberately dishonest; or (d) a final
determination is rendered that indemnification is not lawful.
Insofar as indemnification for liabilities arising under the Act may be
permitted to Directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed 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.
Exhibits and Financial Statement Schedules
(a) Exhibits
* 3.1 Form of Amended and Restated Certificate of Incorporation
* 3.2 Form of Amended and Restated By-Laws
* 4.1 Form of Common Stock Certificate
5.1 Opinion and Consent of Ruskin, Moscou, Evans & Faltischek, P.C.
* 22.1 List of Significant Subsidiaries
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C. (included in
Exhibit 5.1)
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25.1 Power of Attorney (included on signature page)
- ---------------------
* Incorporated by reference from the Company's Registration Statement on
Form S-1, Registration No. 33-89294
Undertakings
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 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.
Insofar as indemnification for liabilities arising under the Act 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 issues.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and continued in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(b)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the Act each
post-effective amendment that contains a form of Prospectus shall be deemed to
be a new Registration Statement relating to the securities therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Act, the Registrant has duly caused
this Registration Statement to be signed on its behalf by the undersigned
thereunto duly authorized, in Bohemia, New York, on July 1, 1996.
PERIPHONICS CORPORATION
By:\s\ Peter J. Cohen
--------------------------------
Peter J. Cohen, President
Dated: July 1, 1996
Pursuant to the requirements of the Act, this Registration Statement has
been signed by the following persons in the capacities and on the dates
indicated. Each person whose signature appears below hereby authorizes each of
Peter J. Cohen and Kevin O'Brien with full power of substitution to execute in
the name of such person and to file any amendment or post effective amendment to
this Registration Statement (or any Registration Statement filed pursuant to
Rule 462) making such changes in this Registration Statement as the Registrant
deems appropriate and appoints each of Peter J. Cohen and Kevin O'Brien with
full power of substitution, attorney-in-fact to sign and to file any amendment
and post-effective amendment to this Registration Statement.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
\s\ Peter J. Cohen Chairman of the Board, President and July 1, 1996
- ------------------------------------ Chief Executive Officer (Principal
Peter J. Cohen Operating Officer)
\s\ Richard A. Daniels Senior Vice President-Sales, July 1, 1996
- ------------------------------------
Richard A. Daniels Treasurer and Director
\s\ Kevin J. O'Brien Vice President-Finance (Principal July 1, 1996
- ------------------------------------ Accounting Officer), Secretary and
Kevin J. O'Brien Director
Director July 1, 1996
- ------------------------------------
Peter Breitstone
Director July 1, 1996
- -----------------------------------
Edward H. Blum
</TABLE>
<PAGE>
Exhibit 5.1
RUSKIN, MOSCOU, EVANS & FALTISCHEK, P.C.
170 Old Country Road
Mineola, New York 11505
(516) 663-6600
July 1, 1996
Periphonics Corporation
4000 Veterans Memorial Highway
Bohemia, NY 11716
Re: Periphonics Corporation
Gentlemen:
We have acted as counsel to Periphonics Corporation, a Delaware corporation
(the "Company"), in connection with its filing of a Registration Statement (the
"Registration Statement") on Form S-3 with respect to 39,125 shares of the
Company's Common Stock to be sold by Ascom Telecommunications Limited (the
"Selling Stockholder"). In connection therewith, we have examined such corporate
records, certificates and documents as we deemed necessary for the purpose of
this opinion, including, without limitation, the Company's Amended and Restated
Certificate of Incorporation and Amended and Restated By-Laws. Based on our
examination, we advise you that, in our opinion, the Common Stock to be sold by
the Selling Stockholder is duly and validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus constituting a part of the Registration Statement.
Very truly yours,
/s/ Ruskin, Moscou, Evans & Faltischek, P.C.
-------------------------------------------
RUSKIN, MOSCOU, EVANS & FALTISCHEK, P.C.
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
- -----------------------------
We consent to the incorporation by reference in this Registration
Statement of Periphonics Corporation on Form S-3 of our report
dated July 21, 1995, appearing in the Annual Report on Form 10-K
of Periphonics Corporation for the year ended May 31, 1995 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
Jericho, New York
June 28, 1996
