As Filed With The Securities And Exchange Commission on August 24, 2004
Registration Statement No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
__________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
_____________________
COGNITRONICS CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-1953544
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
3 Corporate Drive
Danbury, Connecticut 06810-4130
(Address of Registrant's Principal Executive Offices)
_____________________
DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plan)
_____________________
HAROLD F. MAYER
Cognitronics Corporation
3 Corporate Drive
Danbury, Connecticut 06810-4130
(203) 830-3400
(Name, Address and Telephone Number,
of Agent for Service)
_____________________
Copy to:
JOHN T. CONNORS, ESQ.
Shaw Pittman LLP
335 Madison Avenue
New York, New York 10017-4605
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CALCULATION OF REGISTRATION FEE
===========================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Aggregate Registration
Registered Registered Price per Share* Offering Price* Fee
___________________________________________________________________________
Common
Stock Par
Value $.20 187,500 $3.31 $620,625 $78.63
===========================================================================
*Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price of the Registrant's Common
Stock as reported on the American Stock Exchange on August 19, 2004.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") with the
Securities and Exchange Commission:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2003;
(b) All other reports filed by the Company with the Commission since
December 31, 2003 pursuant to Section 13(a) or 15(d) of the Exchange Act;
(c) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8A dated May 25, 1983, filed pursuant to
Section 12(b) of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of this Registration Statement and
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.
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
John T. Connors, a member of the Board of Directors of the Company, is counsel
in the law firm of Shaw Pittman LLP, which gave the legal opinion as to the
legality of the securities being registered included as Exhibit 5.1 hereto.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 7 of the New York Business Corporation Law authorizes every New York
corporation to indemnify its officers and directors under certain
circumstances against liability incurred in connection with proceedings to
which the officers or directors are made a party by reason of their
relationship to the corporation. Officers and directors may only be
indemnified where they have acted in good faith, for a purpose which they
reasonably believed to be in, or, if they were acting on behalf of another
enterprise, not opposed to the best interests of the corporation. If
involved in a criminal action or proceeding, directors may be indemnified
only if they had no reasonable cause to believe that their conduct was
unlawful. In addition, in the case of an action brought in the right of the
corporation, no indemnification may be made in respect of (1) a threatened
action, or a pending action which is settled or otherwise disposed of, or (2)
any claim, issue or matter as to which such person shall have been found
to be liable to the corporation, unless a court of competent jurisdiction
determines that the person is fairly and reasonably entitled to indemnity.
It is also provided that any officer or director (unless limited by the
articles of incorporation of the corporation) who was successful, on the
merits or otherwise, in the defense of any such proceeding shall be entitled
to indemnification. A corporation may also, under certain circumstances, pay
for or reimburse the reasonable expenses incurred by an officer or director
who is a party to a proceeding in advance of final disposition of the
proceeding.
Article 13 of the Company's Certificate of Incorporation, as amended, provides
that no director shall be personally liable to the Company or any stockholder
for damages for any breach of duty in such capacity, except if a judgment or
other final adjudication adverse to the director establishes that (i) the
director's acts or omissions were in bad faith or involved intentional mis-
conduct or a knowing violation of law, (ii) the director personally gained
in fact a financial profit or other advantage to which he was not legally
entitled or (iii) the director's acts violated Section 719 of the Business
Corporation Law of New York. It further provides that if the Business
Corporation Law of New York is amended after approval by the stockholders of
this provision to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of directors of the
Company shall be eliminated or limited to the fullest extent permitted by the
Business Corporation Law of New York, as so amended.
Article 10 of the Company's By-Laws provides that the Company shall indemnify
to the full extent permitted by law any person made, or threatened to be made,
a party to any action or proceeding (whether civil or criminal or otherwise)
by reason of the fact that he, his testator or intestate, is or was a director
or officer of the Company or, at the written request of the Company, is or was
serving, any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, in any capacity against all amounts paid as
a result of such action or proceeding. It also provides that reasonable
expenses actually and necessarily incurred in connection with any actual or
threatened action or proceeding, or in establishing the right to
indemnification, shall be paid by the Company in advance of the final
disposition thereof on such terms as the Company shall determine.
Officers and directors of the Company are covered by insurance which (with
specified exceptions and within specified limitations) indemnifies them
against damages, judgments, settlements and reasonable costs of investigation,
defense and appeal arising from any alleged "wrongful act", meaning any breach
of duty, neglect, error, misstatement, misleading statement, omission or act
by the officers and directors of the Company in their respective capacities
as such.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
4.1 Specimen certificate for Common Stock (Exhibit 4-1 to Form S-1
Registration Statement No. 2-27439 and included herein by reference)
5.1 Opinion of Shaw Pittman LLP as to the legality of the securities
being registered (filed herewith)
23.1 Consent of Carlin, Charron & Rosen LLP (filed herewith)
23.2 Consent of Ernst & Young LLP (filed herewith)
23.3 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (included in signature page)
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which awards or transfers 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, as
amended (the "Securities Act"); (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; (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 clauses (1)(i) and (1)(ii)
4 do not apply if the information required to be included in the post-
effective amendment by those clauses is contained in periodic reports filed
by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the registration statement.
(2) That, for the purpose 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 unawarded at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for the 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 (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the 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 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
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 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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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, in the City of Danbury, State of Connecticut, on August 24, 2004.
COGNITRONICS CORPORATION
By /s/ Harold F. Mayer
Harold F. Mayer, Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brian J. Kelley, Harold F. Mayer, Garrett
Sullivan and John T. Connors his true and lawful attorneys-in-fact and
agents, each acting alone, with full and several power of substitution, for
him and in his name, place and stead, in any and all capacities, to sign any
or all amendments, including post-effective amendments, and supplements to
this registration statement and any or all other documents in connection
therewith, and to file the same, with all exhibits thereunto and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, 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 they or he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, 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, this registration
statement has been signed by the following persons in the capacities and on
the date indicated.
Signature Capacity Date
(i) Principal Executive Officer:
/s/ Brian J. Kelley President and Chief August 24, 2004
Brian J. Kelley Executive Officer
(ii) Principal Financial and
Accounting Officer:
/s/ Garrett Sullivan Treasurer and Chief August 24, 2004
Garrett Sullivan Financial Officer
(iii) A Majority of the Board of Directors:
/s/ John T. Connors August 24, 2004
John T. Connors
/s/ Brian J. Kelley August 24, 2004
Brian J. Kelley
/s/ Jack Meehan August 24, 2004
Jack Meehan
/s/ William M. Merritt August 24, 2004
William A. Merritt
/s/ William J. Stuart August 24, 2004
William J. Stuart
INDEX TO EXHIBITS
Exhibit Sequentially
Number Description Numbered Page
4.1 Specimen certificate for Common Stock (Exhibit
4-1 to Form S-1 Registration Statement
No. 2-27439 and incorporated herein by reference)
5.1 Opinion of Shaw Pittman LLP as to the legality of
the securities being registered 9
23.1 Consent of Carlin, Charron & Rosen LLP 12
23.2 Consent of Ernst & Young LLP 13
23.3 Consent of Counsel Included herein
in Exhibit 5.1
24.1 Power of Attorney Included herein
at Signature page