As filed with the Securities and Exchange Commission on March 17, 2006
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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COPYTELE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 11-2622630
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
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
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Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be 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 $0.975 $14,625,000 $1,564.88
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(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 March
13, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
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CopyTele, Inc. (the "Company" or "we" or "us") has prepared this
Registration Statement in accordance with the requirements of Form S-8 under the
Securities Act of 1933, as amended (the "Securities Act"), to register
15,000,000 shares of our common stock, par value $.01 per share (the "Common
Stock"), issuable pursuant to our CopyTele, Inc. 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 to be named therein
upon the exercise of options granted under 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)
15,000,000 shares of Common Stock under
the CopyTele, Inc. 2003 Share Incentive Plan
The CopyTele, Inc. 2003 Share Incentive Plan is intended to provide
incentives which will attract, retain and motivate highly competent persons as
officers, employees and directors, of, and consultants to, CopyTele, Inc., by
providing them opportunities to acquire shares of our common stock.
Additionally, the CopyTele, Inc. 2003 Share Incentive Plan is intended to assist
in further aligning the interests of our officers, employees, directors and
consultants to those of its other stockholders.
This prospectus is part of a registration statement registering 15,000,000
shares of common stock that we may in the future issue pursuant to our CopyTele,
Inc. 2003 Share Incentive Plan in connection with the exercise of stock options
granted, and with stock or other awards made, pursuant to that plan. The persons
who are issued such stock may include our directors, officers and/or other key
employees and consultants, certain of whom may be considered our "affiliates".
Such persons may, but are not required to, sell the shares they acquire pursuant
to this prospectus. If any of such persons desires to sell any of such stock
pursuant to this prospectus, we will file with the Securities and Exchange
Commission an update to this prospectus naming such person as a selling
shareholder and indicating the number of shares such person is offering pursuant
to this prospectus. See "Selling Shareholders" on page 6 of this prospectus. We
will not receive any of the proceeds from sales by the selling shareholders.
The selling shareholders may 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 March 13, 2006, the closing price of our common stock as reported by
the OTC Bulletin Board was $0.95 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 3 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 March 17, 2006
TABLE OF CONTENTS
Page
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Where You Can Find More Information....................................... 2
The Company............................................................... 3
Risk Factors.............................................................. 3
Selling Shareholders...................................................... 6
Use of Proceeds........................................................... 6
Plan of Distribution...................................................... 6
Legal Matters............................................................. 7
Experts................................................................... 7
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
100 F Street N.E.., 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 a registration statement 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 that 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 (except for information furnished under Item 2.02 or 7.01 of
Current Report on Form 8-K, or exhibits related thereto, which is deemed not to
be incorporated by reference herein), are incorporated by reference:
(i) our Annual Report on Form 10-K for the fiscal year ended October 31,
2005;
2
(ii) our Quarterly Report on Form 10-Q for the quarter ended January 31,
2006; and
(iii) 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.
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.
THE COMPANY
Our principal operations are the development, production and marketing of
thin, high-brightness flat panel CRT displays ("Flat Panel CRTs"), 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.
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.
3
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, 2006, and we may
continue to incur substantial losses and experience substantial negative cash
flows from operations. 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, 2006. We have set forth below our net losses, research and
development expenses and net cash used in operations for the three-month periods
ended January 31, 2006 and 2005, and for the fiscal years ended October 31, 2005
and 2004:
(Unaudited)
Three Months Ended Fiscal Years Ended
January 31, October 31,
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2006 2005 2005 2004
---- ---- ---- ----
Net loss $ 1,239,557 $ 1,006,494 $ 4,451,257 $ 3,360,655
Research and development
expenses $ 656,588 $ 589,953 $ 2,266,911 $ 2,164,427
Net cash used in operations $ 398,356 $ 465,047 $ 1,720,332 $ 1,205,122
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, 2005 states that the net
loss incurred during the year ended October 31, 2005, 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, 2005, raise substantial doubt about our ability to continue as a going
concern. The auditor's report on our financial statements for the years ended
October 31, 2004 and 2003 contained a similar statement. 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.
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
2007. 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. If current cash and cash
that may be generated from operations are insufficient to satisfy our liquidity
requirements, we may seek to sell debt or equity securities or to obtain a line
of credit prior to the first quarter of fiscal 2007. The sale of additional
equity securities or convertible debt could result in dilution to our
stockholders. We can give 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 currently have no arrangements with respect
to additional financing. If we cannot obtain such funds if needed, we would need
to curtail or cease some or all of our operations.
4
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) the development, production
and marketing of thin high-brightness Flat Panel CRT displays and (ii) the
development, production and marketing of multi-functional encryption products
that provide information security for domestic and international users over
virtually every communications media. We have only recently started to produce
color and monochrome versions of our high-brightness Flat Panel CRT displays and
our encryption products are only in their initial stages of commercial
production. 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:
o our ability to successfully market our line of thin high-brightness
Flat Panel CRT displays and encryption products;
o the capability of Svet Ltd. ("Volga"), a Russian display company that
we have been working with for more than eight years, to produce thin
high-brightness color and monochrome Flat Panel CRT displays and
supply them to us;
o our ability to jointly develop with Volga and produce a color Flat
Panel CRT display with various electron emission systems;
o our production capabilities and those of our suppliers as required for
the production of our encryption products;
o long-term performance of our products;
o the capability of our dealers and distributors to adequately service
our encryption products;
o our ability to maintain an acceptable pricing level to end-users for
both our encryption and display products;
o the ability of suppliers to meet our requirements and schedule;
o our ability to successfully develop other new products under
development;
o rapidly changing consumer preferences;
o the possible development of competitive products that could render our
products obsolete or unmarketable; and
o our future negotiations with Volga with respect to payments and other
arrangements under our Joint Cooperation 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 fiscal year or fiscal
quarter may not be indicative of future operating results. You should not rely
on year-to-year or 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.
5
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.
Our common stock is subject to the SEC's penny stock rules which may make our
shares more difficult to sell.
Our stock fits the definition of a penny stock. The SEC rules regarding
penny stocks may have the effect of reducing trading activity in our common
stock and making it more difficult for investors to sell. The rules require a
broker to deliver a risk disclosure document that provides information about
penny stocks and the nature and level of risks in the penny stock market. The
broker must also give bid and offer quotations and broker and salesperson
compensation information to the customer orally or in writing prior to effecting
a transaction and in writing with the confirmation. The SEC rules also require a
broker to make a special written determination that the penny stock is a
suitable investment for the purchaser and receive the purchaser's written
agreement to the transaction before completion of the transaction. These
requirements may result in a lower trading volume of our common stock and lower
trading prices.
SELLING SHAREHOLDERS
This prospectus is part of a registration statement registering 15,000,000
shares of common stock that we may in the future issue pursuant to our CopyTele,
Inc. 2003 Share Incentive Plan in connection with the exercise of stock options
granted, and with stock or other awards made, pursuant to that plan. The persons
who are issued such stock may include our directors, officers and/or other key
employees and consultants, certain of whom may be considered our "affiliates".
Such persons may, but are not required to, sell the shares they acquire pursuant
to this prospectus. If any of such persons desires to sell any of such stock
pursuant to this prospectus, we will update this prospectus by filing with the
SEC a supplement to this prospectus in accordance with Rule 424(b) under the
Securities Act of 1933, as amended, or a post-effective amendment to the
registration statement of which this prospectus is part, naming such person as a
selling shareholder and indicating the number of shares such person is offering
pursuant to this prospectus. Any selling shareholder might or might not receive
or sell all or any of the shares registered under the registration statement of
which this prospectus is part.
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.
6
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 and schedule, and management's assessment of the
effectiveness of internal control over financial reporting, of CopyTele, Inc.
incorporated by reference in this prospectus from our Annual Report on Form 10-K
for the year ended October 31, 2005 have been audited by Grant Thornton LLP,
independent registered public accounting firm, as indicated in their reports
with respect thereto, and are incorporated by reference in reliance upon the
authority of said firm as experts in accounting and auditing. The audit report
of Grant Thornton LLP accompanying the balance sheets as of October 31, 2005 and
2004 and the related statements of operations, shareholders' equity and cash
flows for each of the three years in the period ended October31, 2005, which
expresses an unqualified opinion, contains an explanatory paragraph that states
that CopyTele, Inc. incurred a net loss during the year ended October 31, 2005,
and, as of that date, has an accumulated deficit, and among other factors raise
substantial doubt about its ability to continue as a going concern. The
financial statements and schedule do not include any adjustment that might
result from the outcome of this uncertainty.
7
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
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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, 2005; and
(2) the Company's Quarterly Report on Form 10-Q for the quarter ended
January 31, 2006; and
(3) 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.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interest of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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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.
II-1
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.
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Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
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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 3.2 to the Company's Annual Report on Form 10-K for
the year ended October 31, 2005 (incorporated by reference).
4(c) - CopyTele, Inc. 2003 Share Incentive Plan, filed as Exhibit
4(d) to the Company's Registration Statement on Form S-8,
Registration No. 333-105012 (incorporated by reference).
4(d) - Amendment No. 1 to the CopyTele, Inc. 2003 Share Incentive
Plan, filed as Exhibit 4(e) to the Company's Registration
Statement on Form S-8, Registration No. 333-120333
(incorporated by reference).
4(e) - Amendment No. 2 to the CopyTele, Inc. 2003 Share Incentive
Plan, filed as Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended January 31, 2006
(incorporated by reference).
4(f) - Amendment No. 3 to the CopyTele, Inc. 2003 Share Incentive
Plan, filed as Exhibit 10.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended January 31, 2006
(incorporated by reference).
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).
II-2
Item 9. Undertakings.
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(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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) 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.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference 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 that 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.
(5) That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i) If the registrant is relying on Rule 430B:
(A) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for
the purpose of providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such effective date.
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(ii) If the registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and
included in the registration statement as of the date it is first used after
effectiveness. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such first use, supersede or
modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such date of first use
(6) That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial distribution of the
securities: The registrant undertakes that in a primary offering of securities
of the registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the registrant
relating to the offering required to be filed pursuant to Rule 424 pursuant to
the Securities Act;
(ii) any free writing prospectus relating to the offering prepared by
or on behalf of the registrant or used or referred to by the registrant;
(iii) the portion of any other free writing prospectus relating to the
offering containing material information about the registrant or its securities
provided by or on behalf of the registrant; and
(iv) any other communication that is an offer in the offering made by
the registrant to the purchaser.
(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
II-4
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.
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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 17th day of March, 2006.
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 March 17, 2006
- ------------------- Officer and Director (Principal
Denis A. Krusos Executive Officer)
/s/ Frank J. DiSanto President and Director March 17, 2006
- --------------------
Frank J. DiSanto
/s/ Henry P. Herms Vice President-Finance, Chief Financial March 17, 2006
- ------------------ Officer and Director (Principal
Henry P. Herms Financial and Accounting Officer)
/s/ George P. Larounis Director March 17, 2006
- ----------------------
George P. Larounis
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 3.2 to the Company's Annual Report on Form 10-K for
the year ended October 31, 2005 (incorporated by reference).
4(c) - CopyTele, Inc. 2003 Share Incentive Plan, filed as Exhibit
4(d) to the Company's Registration Statement on Form S-8,
Registration No. 333-105012 (incorporated by reference).
4(d) - Amendment No. 1 to the CopyTele, Inc. 2003 Share Incentive
Plan, filed as Exhibit 4(e) to the Company's Registration
Statement on Form S-8, Registration No. 333-120333
(incorporated by reference).
4(e) - Amendment No. 2 to the CopyTele, Inc. 2003 Share Incentive
Plan, filed as Exhibit 10.1 to the Company's Quarterly
Report on Form 10-Q for the quarter ended January 31, 2006
(incorporated by reference).
4(f) - Amendment No. 3 to the CopyTele, Inc. 2003 Share Incentive
Plan, filed as Exhibit 10.2 to the Company's Quarterly
Report on Form 10-Q for the quarter ended January 31, 2006
(incorporated by reference).
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).