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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 1996
REGISTRATION NO. 333-14803
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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) 468-9000
(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)
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Copies to:
Raymond S. Evans, Esq. William B. Asher, Jr., Esq.
Norman M. Friedland, Esq Testa, Hurwitz & Thibeault, LLP
Ruskin, Moscou, Evans & Faltischek, P.C. 125 High Street
170 Old Country Road Boston, Massachusetts 02110
Mineola, New York 11501 (617) 248-7000
(516) 663-6620 (617) 248-7100 (facsimile)
(516) 663-6641 (facsimile)
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. [ ]
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.
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Part I of this Registration Statement has been intentionally omitted because
this Pre-Effective Amendment No. 1 does not effect any changes to Prospectus.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses payable in
connection with the sale and distribution of the securities being registered,
all of which will be paid by the Selling Stockholders.
Total
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SEC Registration Fee ............................. $ 6,589.50
NASD Filing Fee .................................. 2,674.54
Printing and Engraving Expenses.................... 50,000.00
Legal Fees and Expenses .......................... 115,000.00
Accounting Fees and Expenses ..................... 40,000.00
Miscellaneous .................................... 60,735.96
Total .......................................... $275,000.00
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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.
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 pay-
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ment 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
1.1* Proposed Form of Underwriting Agreement
5.1 Opinion and Consent of Ruskin, Moscou, Evans & Faltischek, P.C.
23.1* Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C. (included in
Exhibit 5.1)
25.1 Power of Attorney (included on signature page)
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*Previously filed
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.
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(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 November 1, 1996
PERIPHONICS CORPORATION
By: /s/ Peter J. Cohen
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Peter J. Cohen, President
Dated: November 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 J. 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 J. 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
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<S> <C> <C>
/s/ Peter J. Cohen Chairman of the Board, President and November 1, 1996
----------------------- Chief Executive Officer (Principal November 1, 1996
Peter J. Cohen Operating Officer)
/s/Richard A. Daniels
----------------------- Senior Vice President-Sales, Treasurer November 1, 1996
Richard A. Daniels and Director
/s/ Kevin J. O'Brien Chief Financial Officer, Vice November 1, 1996
----------------------- President-Finance and Administration
Kevin J. O'Brien (Principal Accounting Officer),
Secretary and Director
/s/ Jayandra Patel Senior Vice President-Product November 1, 1996
----------------------- Development, Assistant Treasurer
Jayandra Patel and Director
/s/ Peter Breitstone Director November 1, 1996
-----------------------
Peter Breitstone
/s/ Edward H. Blum Director November 1, 1996
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Edward H. Blum
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description Page
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<S> <C> <C>
1.1* Proposed Form of Underwriting Agreement
5.1 Opinion and Consent of Ruskin, Moscou, Evans & Faltischek, P.C.
23.1* Consent of Deloitte & Touche LLP, Independent Auditors
23.2 Consent of Ruskin, Moscou, Evans & Faltischek, P.C. (included in Exhibit 5.1)
25.1 Power of Attorney (included on signature page)
</TABLE>
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*Previously filed
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[LETTERHEAD OF RUSKIN, MOSCOV, EVANS & FALTISCHEK, P.C.]
EXHIBIT 5.1
November 1, 1996
Periphonics Corporation
4000 Veterans Memorial Highway
Bohemia, NY 11716
Re: Periphonics Corporation
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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: (i) 1,100,000 shares
(the "Shares") of common stock, $.01 par value of the Company (the "Common
Stock") to be sold by the Selling Stockholders of the Company (the "Selling
Stockholders") to William Blair & Company and Dain Bosworth Incorporated
(the "Underwriters"); and (ii) 165,000 shares of Common Stock to be sold by
the Selling Stockholders (the "Over-Allotment Shares") upon exercise of an
over-allotment option granted to the Underwriters by the Selling Stockholders.
Unless otherwise defined herein, all capitalized terms used herein and not
expressly defined shall have the meaning given to them in the Registration
Statement.
As counsel to the Company, we have examined the Certificate of Incorporation
and By-Laws and other corporate records of the Company and have made such other
investigations as we have deemed necessary in connection with the opinion
hereinafter set forth. We have relied, to the extent we deem such reliance
proper, upon certain factual representations of officers and directors of the
Company given in certificates, in answer to our written inquiries and otherwise,
and, although we have not independently verified all the facts contained
therein, nothing has come to our attention that would cause us to believe that
any of the statements contained therein are untrue or misleading.
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Periphonics Corporation
November 1, 1996
Page 2
In making the aforesaid examinations, we have assumed the genuineness of
all signatures and the conformity to original documents of all copies furnished
to us.
Based solely upon and subject to the foregoing, we are of the opinion that
the Shares, including the Over-Allotment Shares, are duly and validly issued,
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
aforesaid Registration Statement and to the reference to our firm under the
caption "Legal Matters" in the Prospectus constituting a part of said
Registration Statement.
Very truly yours,
/s/ RUSKIN, MOSCOU, EVANS & FALTISCHEK, P.C.
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RUSKIN, MOSCOU, EVANS & FALTISCHEK, P.C.
