View:
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
Under the
Securities Act of 1933
Gentner Communications Corporation
------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Utah 87-0398877
- ----------------------------------- -----------------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1825 West Research Way, Salt Lake City Utah 84119
- ----------------------------------------------------------------------------
(Address of Principal Executive Offices)(Zip Code)
1997 Employee Stock Purchase Plan
- ----------------------------------------------------------------------------
(Full Title of the Plan)
Russell D. Gentner, 1825 West Research Way, Salt Lake City, Utah 84119
- ----------------------------------------------------------------------------
(Name and Address of Agent For Service)
801-975-7200
- ----------------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
============================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ------------------------------------------------------------------------------
Common Stock 500,000 shares $0.922 $461,000 $139.70
(1) The maximum offering price per share of the securities is calculated based
on Rule 457(c). The maximum offering price is $0.922 based upon the average of
the bid and asked price on January 21, 1997.
(2) The maximum aggregate offering price equals 500,000 shares multiplied by
the offering price of $0.922 equaling $461,000.
(3) The amount of the Registration Fee equals $139.70. This amount is arrived
at by multiplying the maximum aggregate offering price of $461,000 by 1/33rd
of 1%.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428(b)(1) under the Securities
Act of 1933 (the "Securities Act"). Such documents need not be filed with the
Securities and Exchange Commission (the "SEC") either as part of this
registration statement (the "Registration Statement") or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in the Registration
Statement pursuant to Item 3 of Part II of this Registration Statement, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
Item 2. Registration Information and Employee Plan Annual Information.
Not Applicable
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference in the
Registration Statement:
(a) the Company's Annual Report on Form 10-KSB for the fiscal year ended
June 30, 1996, as filed with the SEC;
(b) all other reports filed with the SEC pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since June 30, 1996; and
(c) the description of the Company's Common Stock contained in the Form
10 Registration Statement filed by the Company with the SEC under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
In addition to the above, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, 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 the Registration
Statement and to be a part thereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers.
The end of Article XII of the Company's Articles of Incorporation reads
as follows: "Each person who is now or may become a Director of this
Corporation is hereby relieved from and indemnified against liabilities that
might otherwise obtain in the event such Director contracts with this
Corporation for the benefit of himself or any firm, association or corporation
in which he may be interested in any way, provided said Director acts in good
faith."
Section 9.8 of the Company's 1997 Employee Stock Purchase Plan reads as
follows: "No member or former member of the Committee or the Company's board
of directors (the "Board") shall be liable for any action or determination made
in good faith with respect to the Plan or any deduction or withholding made
under the Plan. Each member or former member of the Committee or the Board
shall be indemnified and held harmless by the Company against all costs or
expenses (including counsel fees) or liability (including any sum paid in
settlement of a claim with the approval of the Board) arising out of any act
or omission to act in connection with the Plan to the extent allowed by law."
The indemnification of the Company's directors and officers is governed
by Sections 901-909 of the Utah Revised Business Corporation Act (the "Utah
Act"). Pursuant to the Utah Act, the Company may indemnify a director or
officer against liability incurred in connection with any legal proceeding if:
(a) his conduct was in good faith; (b) he reasonably believed that his
conduct was in, or not opposed to, the Company's best interests; and (c) in the
case of any criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful. Notwithstanding the above, the Company may not indemnify
directors or officers: (a) in connection with a proceeding by or in the right
of the Company in which the director or officer was adjudged liable to the
Company; or (b) in connection with any other proceeding charging that the
director or officer derived an improper personal benefit and in which he was
adjudged liable on that basis. Additionally, if the proceeding is by or in the
right of the Company, the indemnification is limited to the director's or
officer's reasonable expenses incurred in connection with such proceeding.
Notwithstanding the above, the Company must indemnify a director or officer who
was successful, on the merits or otherwise, in the defense of any proceeding,
or in the defense of any claim, issue, or matter in the proceeding, to which
he was a party because he is or was a director or officer of the Company.
Pursuant to the Utah Act, the Company may pay for or reimburse the reasonable
expenses incurred by a director or officer under certain circumstances. A court
may order indemnification of a director or officer by the Company, regardless
of whether the director or officer met the applicable standard of conduct set
forth above, provided that, if the director or officer has been adjudged
liable, such indemnification is limited to reasonable expenses.
Indemnification can be made to a director or officer under the Act only if a
determination is made in each specific instance by either the board of
directors or the shareholders.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits.
The following documents are filed as exhibits to this Form S-8.
Exhibit Number Description
5.1 Opinion of Jones, Waldo, Holbrook & McDonough regarding the
legality of the securities being registered hereunder.
23.1 Consent of Jones, Waldo, Holbrook & McDonough (contained in
Exhibit 5.1 above).
23.2 Consent of Independent Auditors, Ernst & Young LLP.
Item 9. Undertakings.
The Company hereby undertakes to do the following:
(a) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to: (1)
include any prospectus required by Section 10(a)(3) of the Securities
Act; (2) reflect in the prospectus any facts or events which
individually or together, represent a fundamental change in the
information in the Registration Statement; and (3) include any
additional or changed material information on the plan of
distribution.
(b) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of
securities offered, and the offering of the securities at the time
to be the initial bona fide offering.
(c) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all 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, in the city of Salt Lake City, State of Utah, on January 22, 1997.
This Form S-8 has been signed below on behalf of the Company and by the
following persons, which include the principal executive officer, principal
financial officer, its controller or principal accounting officer, and at least
a majority of the board of directors, in the following capacities and on the
dates indicated:
GENTNER COMMUNICATIONS CORPORATION
By: /s/ RUSSELL D. GENTNER
--------------------------------------
Russell D. Gentner
Chief Executive Officer
(principal executive officer)
By: /s/ DAVID L. HARMON
--------------------------------------
David L. Harmon
Chief Financial Officer
(principal financial and accounting officer)
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints Russell D. Gentner, his true and lawful
attorney-in-fact and agent, with full power of substitution for him and in his
name, place, and stead, in any and all capacities, to sign any or all
amendments to this report on Form S-8 and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Commission,
hereby ratifying and confirming all that each said attorney-in-fact or his
substitute or substitutes may do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ RUSSELL D. GENTNER Director, Chairman of the January 22, 1997
- ---------------------------- Board of Directors, and
Russell D. Gentner Chief Executive Officer
(Principal Executive
Officer)
/s/ BRAD R. BALDWIN Director January 22, 1997
- ----------------------------
Brad R. Baldwin
/s/ EDWARD DALLIN BAGLEY Director January 22, 1997
- ----------------------------
Edward Dallin Bagley
/s/ EDWARD N. BAGLEY Director January 22, 1997
- ----------------------------
Edward N. Bagley
/s/ DWIGHT H. EGAN Director January 22, 1997
- ----------------------------
Dwight H. Egan
/s/ K. BRADFORD ROMNEY Director January 22, 1997
- ----------------------------
K. Bradford Romney
EXHIBIT 5.1
[LETTERHEAD OF JONES, WALDO, HOLBROOK & MCDONOUGH]
Salt Lake City
January 22, 1997
Gentner Communications Corporation
1825 West Research Way
Salt Lake City, Utah 84119
Re: SEC Form S-8 Registration Statement for 1997 Employee Stock
Ownership Plan
Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") as it is proposed to be filed by Gentner
Communications Corporation (the "Company") with the Securities and Exchange
Commission (the "SEC") on or around January 22, 1997.
The Registration Statement will register with the SEC under the
Securities Act of 1933, as amended, up to five hundred thousand (500,000)
shares of the Company's common stock (the "Shares") for purposes of
contributing the Shares into the individual accounts of participating
employees according to the Plan.
In preparing this opinion, we have examined the Registration Statement,
the Plan, the Company's Articles of Incorporation, and the Company's Bylaws.
We have assumed that in each instance the Shares have been or will be issued
pursuant to the terms of the Plan.
Subject to the above qualifications and assumptions, it is our opinion
that, when the Shares are sold in accordance with the Registration
Statement, the Plan, and any purchases of the Shares thereunder, the Shares
will be legally issued, fully paid, and non-assessable. We hereby consent
to the inclusion of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
JONES, WALDO, HOLBROOK & McDONOUGH
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Employee Stock Purchase Plan of our report
dated August 7, 1996, with respect to the financial statements of Gentner
Communications Corporation included in its Annual Report (Form 10-KSB/A) for
the year ended June 30, 1996, filed with the Securities Exchange Commission.
ERNST & YOUNG LLP
Salt Lake City, Utah
January 23, 1997