As filed with the Securities and Exchange Commission on May 5, 2003
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------
COPYTELE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 11-2622630
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
900 Walt Whitman Road
Melville, New York 11747
(631) 549-5900
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
COPYTELE, INC. 2003 SHARE INCENTIVE PLAN
(Full Title of Plan)
Denis A. Krusos
Chairman of the Board and Chief Executive Officer
CopyTele, Inc.
900 Walt Whitman Road
Melville, New York 11747
(631) 549-5900
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Title of Each Class of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 per share 15,000,000 shares (3) $0.26 $3,900,000 $315.51
===============================================================================================================================
(1) Plus such indeterminate number of shares of Common Stock of the Registrant
as may be issued to prevent dilution resulting from stock dividends, stock
splits or similar transactions in accordance with Rule 416 under the
Securities Act of 1933.
(2) Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act
of 1933, based upon the average of the high and low sales prices of the
Registrant's Common Stock on the Over-the-Counter Bulletin Board on April
30, 2003.
(3) Represents the registration of shares of Common Stock issuable under the
CopyTele, Inc. 2003 Share Incentive Plan. Registrant has previously
registered 20,000,000 shares of its Common Stock (as adjusted for stock
splits) under Registration Statements on Form S-8 (Registration No.
33-72716, filed December 9, 1993, Registration No. 33-62381, filed
September 6, 1995, and Registration No. 333-16933, filed November 27,
1996), in connection with its CopyTele, Inc. 1993 Stock Option Plan, for
which registration fees were previously paid, and has previously
registered 15,000,000 shares of its Common Stock under Registration
Statements on Form S-8 (Registration No. 333-53416, filed January 9, 2001,
Registration No. 333-69650, filed September 19, 2001, and Registration No.
333-99717, filed September 18, 2002), in connection with its CopyTele,
Inc. 2000 Share Incentive Plan, for which registration fees were
previously paid. Pursuant to Rule 429 of the Securities Act of 1933, as
amended, the prospectus contained herein also relates to the shares of
Common Stock previously registered under such Registration Statements on
Form S-8. See the Rule 429 note below.
As permitted by Rule 429 under the Securities Act of 1933, the prospectus filed
together with this registration statement is a combined reoffer prospectus which
shall be deemed a post-effective amendment to the registrant's Registration
Statements on Form S-8, Registration No. 33-72716, filed December 9, 1993,
Registration No. 33-62381, filed September 6, 1995, Registration No. 333-16933,
filed November 27, 1996, Registration No. 333-53416, filed January 9, 2001,
Registration No. 333-69650, filed September 19, 2001, and Registration No.
333-99717, filed September 18, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
CopyTele, Inc. (the "Company" or "we" or "us") has filed previously with
the Securities and Exchange Commission (the "Commission") Registration
Statements on Form S-8 (Registration No. 33-72716, filed December 9, 1993,
Registration No. 33-62381, filed September 6, 1995, Registration No. 333-16933,
filed November 27, 1996, Registration No. 333-53416, filed January 9, 2001,
Registration No. 333-69650, filed September 19, 2001, and Registration No.
333-99717, filed September 18, 2002) to register shares of our common stock, par
value $.01 per share (the "Common Stock"), issued or issuable pursuant to our
1993 Stock Option Plan and our Copytele, Inc. 2000 Share Incentive Plan. This
Registration Statement has been prepared in accordance with the requirements of
Form S-8 under the Securities Act of 1933, as amended (the "Securities Act"), to
register shares issued or issuable pursuant to our 2003 Share Incentive Plan and
to file a prospectus, prepared in accordance with the requirements of Part I of
Form S-3 and, pursuant to General Instruction C of Form S-8, to be used for
reoffers and resales of Common Stock acquired by persons named therein upon the
exercise of options heretofore or hereafter granted under our 1993 Stock Option
Plan, our Copytele, Inc. 2000 Share Incentive Plan or our Copytele, Inc. 2003
Share Incentive Plan.
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to plan participants as specified
by Rule 428(b)(1) of the Securities Act. Such documents are not required to be
and are not filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
REOFFER PROSPECTUS
CopyTele, Inc.
Common Stock (Par Value $.01 Per Share)
5,828,080 shares of Common Stock under
the 1993 Stock Option Plan
2,240,848 shares of Common Stock under
the CopyTele, Inc. 2000 Share Incentive Plan
15,000,000 shares of Common Stock under
the CopyTele, Inc. 2003 Share Incentive Plan
This prospectus relates to the offer and sale from time to time by
directors, officers and/or other key employees and consultants, who may be
considered our "affiliates", of up to 23,068,928 shares of our common stock
which have been or may be acquired pursuant to our 1993 Stock Option Plan, as
amended, our Copytele, Inc. 2000 Share Incentive Plan, as amended, and our
Copytele, Inc. 2003 Share Incentive Plan, including 7,568,080 shares issuable on
exercise of options held as of the date of this prospectus by officers and
directors, as listed on page 7 of this prospectus under "Selling Shareholders."
We will not receive any of the proceeds from sales by the selling shareholders.
The selling shareholders propose to sell the shares from time to time in
transactions occurring either on or off the OTC Bulletin Board (or such other
market, if any, on which our common stock may be listed or quoted) at prevailing
market prices or at negotiated prices. Sales may be made through brokers or to
dealers, who are expected to receive customary commissions or discounts.
The selling shareholders and participating brokers and dealers may be
deemed to be "underwriters" within the meaning of the Securities Act of 1933, in
which event any profit on the sale of shares of those selling shareholders and
any commissions or discounts received by those brokers or dealers may be deemed
to be underwriting compensation under the Securities Act.
Our common stock is traded on the OTC Bulletin Board under the symbol
"COPY". On April 30, 2003, the closing price of our common stock as reported by
the OTC Bulletin Board was $0.26 per share.
We are paying all expenses of registration incurred in connection with this
offering but the selling shareholders will pay all brokerage commissions and
other selling expenses.
See "Risk Factors" beginning on Page 4 of this prospectus for a discussion
of certain risks and other factors that you should consider before purchasing
our common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is May 5, 2003
TABLE OF CONTENTS
Page
Where You Can Find More Information.................................. 2
The Company.......................................................... 4
Risk Factors......................................................... 4
Selling Shareholders................................................. 6
Use of Proceeds...................................................... 8
Plan of Distribution................................................. 8
Legal Matters........................................................ 8
Experts.............................................................. 8
You should only rely on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The common stock is not being
offered in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any supplement is accurate as of any
date other than the date on the front of those documents.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information required by the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), with the Securities and Exchange Commission ("SEC"). You may
read and copy any document we file at the SEC's public reference room located at
450 5th Street, N. W., Washington, D.C. 20549. Please call the SEC at 1-800
SEC-0330 for further information on the public reference room. Our SEC filings
are also available to the public from the SEC's web site at: http:/www.sec.gov.
We have filed with the SEC registration statements on Form S-8 under the
Securities Act with respect to the common stock. This prospectus, which
constitutes a part of that registration statement, does not contain all the
information contained in that registration statement and its exhibits. For
further information with respect to CopyTele and our common stock, you should
consult the registration statement and its exhibits. Statements contained in
this prospectus concerning the provisions of any documents are necessarily
summaries of those documents, and each statement is qualified in its entirety by
reference to the copy of the document filed with the SEC.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to the other information we have filed with the SEC. The
information that we incorporate by reference is considered to be part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information.
The following documents filed by us with the SEC pursuant to Section 13 of
the Exchange Act (File No. 0-11254) and any future filings under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act made prior to the termination of the
offering are incorporated by reference:
(i) our Annual Report on Form 10-K for the fiscal year ended October 31,
2002;
(ii) our Quarterly Report on Form 10-Q for the fiscal quarter ended January
31, 2003;
2
(iii) our Current Report on Form 8-K dated March 25, 2003; and
(iv) the description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC under Section 12 of the
Exchange Act on October 24, 1983, including any amendment or report
filed for the purpose of updating such description.
We will provide without charge to each person to whom a copy of this
prospectus is delivered a copy of any or all documents incorporated by reference
into this prospectus except the exhibits to such documents (unless such exhibits
are specifically incorporated by reference in such documents). Requests for
copies can be made by writing or telephoning us at 900 Walt Whitman Road,
Melville, New York 11747, Attention: Secretary; telephone number: (631)
549-5900.
Our financial statements incorporated by reference in this prospectus and
elsewhere in the registration statement include financial statements that were
audited by Arthur Andersen LLP ("Andersen"). On June 6, 2002, we dismissed
Andersen as our principal public accountants. We have been unable to obtain,
after reasonable efforts, Andersen's written consent to incorporate by reference
Andersen's reports on the financial statements. Under these circumstances, Rule
437a under the Securities Act of 1933 permits the registration statement of
which this prospectus is a part to be filed without a written consent from
Andersen. The absence of such written consent from Andersen may limit a
shareholder's ability to assert claims against Andersen under Section 11(a) of
the Securities Act of 1933 for any untrue statement of a material fact contained
in the financial statements audited by Andersen or any omissions to state a
material fact required to be stated therein.
Unless otherwise stated in this prospectus, references to "CopyTele", "we",
"our" and "us" refer to CopyTele, Inc., a Delaware corporation.
Safe Harbor Statement under the Private Securities Litigation Reform Act of 1995
This prospectus contains "forward-looking statements" within the meaning of the
Private Securities Litigation Reform Act of 1995. Forward-looking statements are
not statements of historical facts, but rather reflect our current expectations
concerning future events and results. We generally use the words "believes",
"expects", "intends", "plans", "anticipates", "likely", "will", and similar
expressions to identify forward-looking statements. Such forward-looking
statements, including those concerning our expectations, involve risks,
uncertainties and other factors, some of which are beyond our control, which may
cause our actual results, performance or achievements, or industry results, to
be materially different from any future results, performance, or achievements
expressed or implied by such forward-looking statements. These risks,
uncertainties and factors include, but are not limited to, those factors more
fully described under "Risk Factors". We undertake no obligation to publicly
update or revise any forward-looking statements, whether as a result of new
information, future events or otherwise. You are cautioned not to unduly rely on
such forward-looking statements when evaluating the information presented in
this prospectus.
3
THE COMPANY
Our principal operations include the development of a full-color flat panel
video display and the development, production and marketing of multi-functional
encryption products that provide information security for domestic and
international users over virtually every communications media.
Our line of hardware encryption products presently includes the USS-900,
the DCS-1200, the DCS-1400, the STS-1500 and the ULP-1. These encryption
products are multi-functional, hardware-based digital encryption systems that
provide high-grade encryption using either the Citadel(TM) CCX encryption
cryptographic chip (which is manufactured by the Harris Corporation) or the
Triple DES or the new AES algorithm (algorithms available in the public domain
which are used by many U.S. government agencies). We have also developed the
USS-900 Security Software, a software security product, using either the Triple
DES or the AES algorithm, for the encryption of data files and e-mail
attachments in both desktop and laptop computers utilizing Windows operating
systems. We are continuing our research and development activities for
additional encryption products.
We were incorporated on November 5, 1982, under the laws of the State of
Delaware. Our principal executive offices are located at 900 Walt Whitman Road,
Melville, New York 11747, and our telephone number is (631) 549-5900.
RISK FACTORS
You should carefully consider the following factors and other information
in this prospectus before deciding to invest in our common stock. If any of the
following risks actually occur, our business and financial results could be
materially and adversely affected. In that case, the trading price of our common
stock could decline and you could lose all or part of your investment.
We have experienced significant net losses and negative cash flows from
operations and they may continue.
We have had net losses and negative cash flows from operations in each year
since our inception and in the three months ended January 31, 2003, and we may
continue to incur substantial losses and experience substantial negative cash
flows from operations. While payments from Futaba Corporation ("Futaba") under
our Joint Cooperation Agreement for Field Emission Displays (the "Futaba
Agreement") provided substantial cash from operations in the years ended October
31, 2002 and 2001, since the Futaba Agreement terminated in June 2002, we do not
anticipate receiving any further payments under the Futaba Agreement.
We have incurred substantial costs and expenses in developing our
encryption and flat panel display technologies and in our efforts to produce
commercially marketable products incorporating our technology. We have had
limited sales of products to support our operations from inception through
January 31, 2003. We have set forth below our net losses, research and
development expenses and net cash used in operations for the three fiscal years
ended October 31, 2002 and for the three months ended January 31, 2003:
Fiscal Years Ended October 31, Three Months Ended
----------------------------- -------------------
2002 2001 2000 January 31, 2003 (Unaudited)
---- ---- ---- ----------------------------
Net loss $ 3,285,240 $ 3,571,957 $ 4,964,173 $ 804,596
Research and development expenses $ 1,625,974 $ 2,324,949 $ 2,732,229 $ 491,627
Net cash used in operations $ 431,471 $ 717,845 $ 4,840,578 $ 286,079
4
We may need additional funding in the future which may not be available on
acceptable terms and, if available, may result in dilution to our stockholders,
and our auditors have issued a "going concern" audit opinion.
We anticipate that, if cash generated from operations is insufficient to
satisfy our requirements, we will require additional funding to continue our
research and development activities and market our products. The auditor's
report on our financial statements as of October 31, 2002 states that the net
loss incurred during the year ended October 31, 2002, our accumulated deficit as
of that date, and the other factors described in Note 1 to the Financial
Statements included in our Annual Report on Form 10-K for the year ended October
31, 2002, raise substantial doubt about our ability to continue as a going
concern. Our financial statements have been prepared assuming we will continue
as a going concern and do not include any adjustments that might result from the
outcome of this uncertainty.
Based on reductions in operating expenses that have been made and
additional reductions that may be implemented, if necessary, we believe that our
existing cash and accounts receivable, together with cash flows from expected
sales of encryption products and flat panel displays, and other potential
sources of cash flows, will be sufficient to enable us to continue in operation
until at least the end of the first quarter of fiscal 2004. We anticipate that,
thereafter, we will require additional funds to continue marketing, production,
and research and development activities, and we will require outside funding if
cash generated from operations is insufficient to satisfy our liquidity
requirements. However, our projections of future cash needs and cash flows may
differ from actual results. We have engaged a firm as an investment advisor and
placement agent in connection with an anticipated private placement of equity
securities. The sale of additional equity securities or convertible debt could
result in dilution to our stockholders. We can give you no assurance that we
will be able to generate adequate funds from operations, that funds will be
available to us from debt or equity financings or that, if available, we will be
able to obtain such funds on favorable terms and conditions.
We may not generate sufficient revenues to support our operations in the future
or to generate profits.
We are engaged in two principal operations: (i) developing, manufacturing
and marketing encryption products for voice, fax, and data communications and
(ii) with Volga Svet, Ltd. ("Volga"), developing an advanced flat panel video
display technology. Our encryption products are only in their initial stages of
commercial production and we have not yet begun commercial production of our
flat panel displays. Our investments in research and development are
considerable. Our ability to generate sufficient revenues to support our
operations in the future or to generate profits will depend upon numerous
factors, many of which are beyond our control, including:
-- our ability to successfully market our line of encryption products;
-- our production capabilities and those of our suppliers as required for
the production of our encryption products;
-- long-term product performance and the capability of our dealers and
distributors to adequately service our products;
-- our ability to maintain an acceptable pricing level to end-users for
our products;
-- the ability of suppliers to meet our requirements and schedule;
-- our ability to successfully develop our new products under
development;
-- rapidly changing consumer preferences;
-- the possible development of competitive products that could render our
products obsolete or unmarketable;
5
-- our ability to further develop and to commercialize our flat panel
display technology in light of the termination of the Futaba
Agreement;
-- our ability to jointly develop with Volga a full-color video display
that can be successfully marketed;
-- the capability of Volga to produce video displays and supply them to
us; and
-- our future negotiations with Volga with respect to payments and other
arrangements under our agreement with Volga.
Because our revenue is subject to fluctuation, we may be unable to reduce
operating expenses quickly enough to offset any unexpected revenue shortfall. If
we have a shortfall in revenue in relation to expenses, our operating results
would suffer. Our operating results for any particular quarter may not be
indicative of future operating results. You should not rely on
quarter-to-quarter comparisons of results of operations as an indication of our
future performance.
We are dependent upon a few key executives and the loss of their services could
adversely affect us.
Our future success is dependent on our ability to hire, retain and motivate
highly qualified personnel. In particular, our success depends on the continued
efforts of our Chief Executive Officer, Denis A. Krusos, and our President,
Frank J. DiSanto, who founded our company in 1982 and are engaged in the
management and operations of our business, including all aspects of the
development, production and marketing of our encryption products and flat panel
display technology. In addition, Messrs. Krusos and DiSanto, as well as our
other skilled management and technical personnel, are important to our future
business and financial arrangements. The loss of the services of any such
persons could have a material adverse effect on our business and operating
results.
The very competitive markets for our encryption products and flat panel display
technology could have a harmful effect on our business and operating results.
The markets for our encryption products and flat panel display technology
worldwide are highly competitive and subject to rapid technological changes.
Most of our competitors are larger than us and possess financial, research,
service support, marketing, manufacturing and other resources significantly
greater than ours. Competitive pressures may have a harmful effect on our
business and operating results.
SELLING SHAREHOLDERS
This prospectus relates to shares of common stock which have been or may be
acquired by the selling shareholders pursuant to our 1993 Stock Option Plan, our
Copytele, Inc. 2000 Share Incentive Plan and our Copytele, Inc. 2003 Share
Incentive Plan. The selling shareholders are directors, officers and/or other
key employees and consultants, who may be considered our "affiliates". The
following table sets forth certain information with respect to the selling
shareholders as of April 30, 2003, as follows: (1) the name and position with
CopyTele within the past three years of each selling shareholder; (2) the number
of shares of common stock beneficially owned by each selling shareholder
(including shares obtainable under options exercisable within sixty (60) days of
such date); (3) the number of shares of common stock being offered hereby; and
(4) the number and percentage of our outstanding shares of common stock to be
beneficially owned by each selling shareholder after completion of the sale of
common stock being offered hereby. The number of shares offered for sale by each
selling shareholder may be updated in, and additional individuals who may be or
may become our affiliates may be added as selling shareholders hereunder by,
supplements and/or amendments to this prospectus, which will be filed with the
SEC in accordance with Rule 424(b) under the Securities Act of 1933, as amended.
There is no assurance that any of the selling shareholders will sell any or all
of their shares of common stock.
6
Selling Shareholder Number of Shares Beneficially Owned
and Position with Shares Number of After Sale
the Company within Beneficially Shares Being -------------------------
the Past Three Years Owned (1) Offered Hereby(2) Number Percent(3)
---------------------------- ------------ ------------------ --------------------------
Denis A. Krusos................... 5,940,600 3,576,290 2,364,310 2.88%
Director, Chairman of the
Board and Chief Executive
Officer
Frank J. DiSanto.................. 3,897,505 3,254,290 643,215 *
Director and President
Henry P. Herms.................... 250,000 250,000 0 *
Director, Vice
President-Finance and Chief
Financial Officer
George P. Larounis................ 362,500 382,500 0 *
Director
Richard J. Salute................. 0 20,000 0 *
Director
Anthony Bowers.................... 239,300 85,000 174,300 *
Director
- ---------------------
* Less than 1%
(1) Includes 2,826,290 shares, 2,654,290 shares, 0 shares, 322,500 shares, 0
shares, and 25,000 shares of common stock as to which Denis A. Krusos, Frank J.
DiSanto, Henry P. Herms, George P. Larounis, Richard J. Salute, and Anthony
Bowers, respectively, have the right to acquire currently or within 60 days of
the date hereof upon exercise of options granted pursuant to the 1993 Stock
Option Plan. Also includes 750,000 shares, 600,000 shares, 250,000 shares,
40,000 shares, 0 shares, and 40,000 shares of common stock as to which Denis A.
Krusos, Frank J. DiSanto, Henry P. Herms, George P. Larounis, Richard J. Salute,
and Anthony Bowers, respectively, have the right to acquire currently or within
60 days of the date hereof upon the exercise of options granted pursuant to the
Copytele, Inc. 2000 Share Incentive Plan.
(2) Includes shares issuable upon exercise of options currently granted to the
selling shareholder, whether or not such options are exercisable within 60 days.
Does not constitute a commitment to sell any or all of the stated number of
shares. The number of shares to be sold shall be determined from time to time by
each selling shareholder in his discretion.
(3) Percentage is computed with reference to the 74,421,807 shares of our common
stock outstanding as of April 30, 2003, and assumes the exercise of all
presently exercisable options by the selling shareholders and the sale of all
shares offered by the selling shareholders under this prospectus.
7
USE OF PROCEEDS
Shares covered by this prospectus will be sold by the selling shareholders
as principals for their own account. We will not receive any proceeds from sales
of any shares by selling shareholders.
PLAN OF DISTRIBUTION
The selling shareholders, or pledges, donees, or transferees of or
successors in interest to the selling shareholders, may sell shares pursuant to
this prospectus from time to time in transactions (including one or more block
transactions) on the OTC Bulletin Board (or such other market, if any, on which
our common stock may be listed or quoted), in the public market off the OTC
Bulletin Board, in privately negotiated transactions, or in a combination of
such transactions. Each sale may be made either at the market price prevailing
at the time of sale or at a negotiated price. Sales may be made through brokers
or to dealers, and such brokers or dealers may receive compensation in the form
of commissions or discounts not exceeding those customary in similar
transactions. Any shares covered by this prospectus that qualify for sale under
Rule 144 under the Securities Act may be sold under Rule 144 rather than under
this prospectus. We are paying all expenses of registration incurred in
connection with this offering, but the selling shareholders will pay their own
brokerage commissions and any other expenses they incur.
The selling shareholders and any dealers acting in connection with the
offering or any brokers executing sell orders on behalf of a selling shareholder
may be deemed to be "underwriters" within the meaning of the Securities Act, in
which event any profit on the sale of shares by a selling shareholder and any
commissions or discounts received by a broker or dealer may be deemed to be
underwriting compensation under the Securities Act. In addition, a broker or
dealer may be required to deliver a copy of this prospectus to any person who
purchases any of the shares from or through the broker or dealer.
LEGAL MATTERS
Certain legal matters with respect to the Common Stock offered hereby will
be passed upon by Duane Morris LLP, our legal counsel.
EXPERTS
The financial statements of CopyTele, Inc. incorporated in this prospectus
by reference to our Annual Report on Form 10-K for the year ended October 31,
2002 have been audited by Grant Thornton LLP, independent certified public
accountants, as stated in its 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.
Our financial statements incorporated by reference in this prospectus and
elsewhere in the registration statement include financial statements that were
audited by Andersen. On June 6, 2002, we dismissed Andersen as our principal
public accountants. We have been unable to obtain, after reasonable efforts,
Andersen's written consent to incorporate by reference Andersen's reports on the
financial statements. Under these circumstances, Rule 437a under the Securities
Act of 1933 permits the registration statement of which this prospectus is a
part to be filed without a written consent from Andersen. The absence of such
written consent from Andersen may limit a shareholder's ability to assert claims
against Andersen under Section 11(a) of the Securities Act of 1933 for any
untrue statement of a material fact contained in the financial statements
audited by Andersen or any omissions to state a material fact required to be
stated therein.
8
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
------ ----------------------------------------
The following documents filed with the Securities and Exchange
Commission by the Company are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal
year ended October 31, 2002;
(2) the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended January 31, 2003;
(3) the Company's Current Report on Form 8-K dated March 25,
2003; and
(4) the description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934 on
October 24, 1983, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, as amended,
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 this
Registration Statement and to be part hereof from the date of filing such
documents.
The Company's financial statements incorporated by reference in this
Registration Statement include financial statements that were audited by Arthur
Andersen LLP ("Andersen"). On June 6, 2002, the Company dismissed Andersen as
its principal public accountants. The Company has been unable to obtain, after
reasonable efforts, Andersen's written consent to incorporate by reference
Andersen's reports on the financial statements. Under these circumstances, Rule
437a under the Securities Act of 1933 permits this Registration Statement to be
filed without a written consent from Andersen. The absence of such written
consent from Andersen may limit a shareholder's ability to assert claims against
Andersen under Section 11(a) of the Securities Act of 1933 for any untrue
statement of a material fact contained in the financial statements audited by
Andersen or any omissions to state a material fact required to be stated
therein.
Item 4. Description of Securities.
------ -------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
------ -------------------------------------
Not applicable.
II-1
Item 6. Indemnification of Directors and Officers.
------ -----------------------------------------
Generally, Section 145 of the General Corporation Law of the State of
Delaware permits a corporation to indemnify certain persons made a party to an
action, by reason of the fact that such person is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
enterprise. In the case of an action by or in the right of the corporation, no
indemnification may be made in respect of any matter as to which that person was
adjudged liable for negligence or misconduct in the performance of that person's
duty to the corporation unless the Delaware Court of Chancery or the court in
which the action was brought determines that despite the adjudication of
liability that person is fairly and reasonably entitled to indemnity for proper
expenses. To the extent that person has been successful in the defense of any
matter, that person shall be indemnified against expenses actually and
reasonably incurred by him.
Article XIII of the By-Laws of the Company contain provisions which are
designed to provide mandatory indemnification of directors and officers of the
Company to the full extent permitted by law, as now in effect or later amended.
The Company's By-Laws, as amended and restated, are filed as an Exhibit to this
Registration Statement.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
as disclosed above, 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.
Item 7. Exemption from Registration Claimed.
------ -----------------------------------
Not applicable.
Item 8. Exhibits.
------ --------
Exhibit No. Description
----------- -----------
4(a) - Certificate of Incorporation of the
Company, as amended, filed as Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended July 31, 1992
(incorporated by reference).
4(b) - By-Laws of the Company, as amended and
restated, filed as Exhibit 4(b) to the
Company's Registration Statement on Form
S-8, Registration No. 33-49402 (incorporated
by reference).
4(c) - Amendment to By-Laws, filed as Exhibit 3.3
to the Company's Quarterly Report on Form
10-Q for the quarter ended January 31, 2003
(incorporated by reference).
4(d) - CopyTele, Inc. 2003 Share Incentive Plan,
(filed herewith).
5 - Opinion and consent of Duane Morris LLP
(filed herewith).
23(a) - Consent of Grant Thornton LLP (filed
herewith).
23(b) - Consent of Duane Morris LLP (included in
Exhibit 5).
II-2
24 - Powers of Attorney (included on signature
page).
Item 9. Undertakings.
------ ------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post- effective amendment to this
registration statement, 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.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, 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 the 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
offering.
(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 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 at Melville, State of New York, on this 5th day of May, 2003.
CopyTele, Inc.
By: /s/ Denis A. Krusos
----------------------
Denis A. Krusos
Chairman of the Board and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Denis A. Krusos and Frank J. DiSanto
acting individually, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Denis A. Krusos Chairman of the Board, Chief Executive Officer and May 5, 2003
- ------------------- Director (Principal Executive Officer)
Denis A. Krusos
/s/ Frank J. DiSanto President and Director May 5, 2003
- --------------------
Frank J. DiSanto
/s/ Henry P. Herms Vice President-Finance, Chief Financial Officer and May 5, 2003
- ------------------ Director (Principal Financial and Accounting
Henry P. Herms Officer)
/s/ George P. Larounis Director May 5, 2003
- ----------------------
George P. Larounis
/s/ Richard J. Salute
- ---------------------
Richard J. Salute Director May 5, 2003
/s/ Anthony Bowers Director May 5, 2003
- ------------------
Anthony Bowers
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4(a) - Certificate of Incorporation of the
Company, as amended, filed as Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended July 31, 1992
(incorporated by reference).
4(b) - By-Laws of the Company, as amended and
restated, filed as Exhibit 4(b) to the
Company's Registration Statement on Form
S-8, Registration No. 33-49402 (incorporated
by reference).
4(c) - Amendment to By-Laws, filed as Exhibit 3.3
to the Company's Quarterly Report on Form
10-Q for the quarter ended January 31, 2003
(incorporated by reference).
4(d) - CopyTele, Inc. 2003 Share Incentive Plan,
(filed herewith).
5 - Opinion and consent of Duane Morris LLP
(filed herewith).
23(a) - Consent of Grant Thornton LLP (filed
herewith).
23(b) - Consent of Duane Morris LLP (included in
Exhibit 5).
24 - Powers of Attorney (included on signature
page).