S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on March 4, 2002 Registration No. 333- -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ NET2PHONE, INC. (Exact name of Registrant as specified in its charter) Delaware 22-3559037 (State of Incorporation) (I.R.S. Employer Identification No.) 520 Broad Street Newark, New Jersey 07102 (Address of principal executive offices) ------------------------ Option Agreement between Patrice Uzan and Net2Phone, Inc. Option Agreement between Henri Tebeka and Net2Phone, Inc. Option Agreement between Eric Constantine and Net2Phone, Inc. (Full title of the Plans) ------------------------- Stephen M. Greenberg Net2Phone, Inc. Chief Executive Officer 520 Broad Street Newark, New Jersey 07102 (973) 438-3111 (Name, address and telephone number, including area code, of agent for service) ------------------------ Copy to: Richard W. Porter, Esq. Kirkland & Ellis 200 E. Randolph Drive Chicago, IL 60601 (312) 861-2000 CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------------------------ Proposed Maximum Proposed Maximum Amount of Amount to be Offering Price Aggregate Offering Registration Title of Securities to be Registered Registered (1) Per Share (2) Price (2) Fee ------------------------------------------------------------------------------------------------------------------------------------ Common Stock , $0.01 par value 150,000 $5.27 $790,500 $72.73 ------------------------------------------------------------------------------------------------------------------------------------
(1) In the event of a stock split, stock dividend, or similar transaction involving the Registrant's common stock, in order to prevent dilution, the number of shares registered shall be automatically increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933, as amended (the "Securities Act"). (2) Estimated solely for the purpose of calculating the amount of the registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act, on the basis of the average high and low prices of the Registrant's common stock on February 28, 2002. -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS Item 1. Plan Information The documents containing the information specified in Part I, Items 1 and 2, will be delivered to participants in the plan covered by this registration statement, in accordance with Form S-8 and Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission ("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 into this 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. Registrant Information and Employee Plan Annual Information. Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this registration statement (which documents are incorporated by reference in the Section 10(a) prospectus), other documents required to be delivered to eligible employees pursuant to Rule 428(b) or additional information about the Net2Phone, Inc. 1999 Amended and Restated Stock Option and Incentive Plan are available without charge by contacting: Sue Burman Vice-President - Human Resources Net2Phone, Inc. 520 Broad Street Newark, New Jersey 07102 (973) 438-3203 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The Commission 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 those documents. The information incorporated by reference is an important part of this registration statement, and information that we file later with the Commission will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14, or 15(d) of the Securities and Exchange Act of 1934, as amended, until such time as this registration statement is no longer in effect: (a) Our Annual Report on Form 10-K for the fiscal year ended July 31, 2001; (b) Our Quarterly Report on Form 10-Q for the quarter ended October 31, 2001; 2 (c) Our Current Report on Form 8-K, filed on November 2, 2001; (d) Our Current Report on Form 8-K, filed on November 11, 2001; (e) Our Current Report on Form 8-K, filed on December 21, 2001; (f) Our Current Report on Form 8-K, filed on February 26, 2002; and (g) The description of our common stock contained in our Registration Statement on Form 8-A filed with the Commission on July 20,1999, including any amendment or report filed for the purpose of updating such description. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Bruce D. Shoulson, who has rendered an opinion as to the validity of the common stock being registered by this registration statement, is an employee of Net2Phone, Inc. Item 6. Indemnification of Directors and Officers. Reference is made to Section 145 of the Delaware General Corporation Law which allows for the indemnification of officers, directors, and other corporate agents in terms sufficiently broad to indemnify such persons under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act, and to Section 102(6)(7) of the Delaware General Corporation Law, which provides for the elimination or limitation of the personal liability for monetary damages of directors under certain circumstances. Article Sixth of our Certificate of Incorporation and Article VIII of our Bylaws provide for indemnification of our directors, officers, employees and other agents to the extent and under the circumstances permitted by the Delaware General Corporation Law. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Description ------- ------------ 4.1 Option Agreement between Patrice Uzan and Net2Phone, Inc. 4.2 Option Agreement between Henri Tebeka and Net2Phone, Inc. 4.3 Option Agreement between Eric Constantine and Net2Phone, Inc. 5.1 Opinion of Bruce D. Shoulson, General Counsel of Net2Phone, Inc. 23.1 Consent of Bruce D. Shoulson (included in Exhibit 5.3) 23.2 Consent of Ernst & Young LLP, Independent Auditors 23.3 Consent of Ernst & Young, Independent Auditors 24.1 Power of Attorney (included in signature page) Item 9. Undertakings. 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 purposes of determining any liability under the Securities Act, 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. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration 3 statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as the indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities 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 a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the question has already been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, Net2Phone Inc., a corporation organized and existing under the laws of the State of Delaware, 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, in the City of Newark, State of New Jersey, on this 4th day of March, 2002. NET2PHONE, INC. /s/ Stephen M. Greenberg ---------------------------- Stephen M. Greenberg Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Stephen M. Greenberg and Glenn J. Williams, jointly and severally, his attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him or her and in his name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each 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 as he or she might or could do in person, and ratifying and confirming all that the attorney-in-facts and agents, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date -------------------------------------------------------------------------------- /s/ HOWARD S. JONAS --------------------------- Chairman of the Board March 4, 2002 HOWARD S. JONAS and Director /s/ STEPHEN M. GREENBERG --------------------------- Chief Executive Officer March 4, 2002 STEPHEN M. GREENBERG (Principal Executive Officer) and Director /s/ ILAN M. SLASKY --------------------------- Chief Financial Officer March 4, 2002 Ilan M. Slasky (Principal Accounting and Financial Officer) /s/ JAMES A. COURTER --------------------------- Director March 4, 2002 James A. Courter /s/ MICHAEL FISCHBERGER --------------------------- Director March 4, 2002 Michael Fischberger Signature Title Date -------------------------------------------------------------------------------- /s/ HARRY C. MCPHERSON, JR. --------------------------- Director March 4, 2002 Harry C. McPherson, Jr. /s/ JAMES R. MELLOR --------------------------- Director March 4, 2002 James R. Mellor /s/ GARY E. RIESCHEL --------------------------- Director March 4, 2002 Gary E. Rieschel /s/ DANIEL H. SCHULMAN --------------------------- Director March 4, 2002 Daniel H. Schulman /s/ JOYCE J. MASON Director March 4, 2002 --------------------------- Joyce J. Mason /s/ STEPHEN R. BROWN Director March 4, 2002 --------------------------- Stephen R. Brown /s/ ANTHONY G. WERNER Director March 4, 2002 --------------------------- Anthony G. Werner /s/ JESSE P. KING Director March 4, 2002 --------------------------- Jesse P. King /s/ Michael J. Weiss --------------------------- Director March 4, 2002 Michael J. Weiss INDEX TO EXHIBITS Exhibit Number Description ------- ----------- 4.1 Option Agreement between Patrice Uzan and Net2Phone, Inc. 4.2 Option Agreement between Henri Tebeka and Net2Phone, Inc. 4.3 Option Agreement between Eric Constantine and Net2Phone, Inc. 5.1 Opinion of Bruce D. Shoulson, General Counsel of Net2Phone, Inc. 23.1 Consent of Bruce D. Shoulson (included in Exhibit 5.3) 23.2 Consent of Ernst & Young LLP, Independent Auditors 23.3 Consent of Ernst & Young, Independent Auditors 24.1 Power of Attorney (included in signature page)