SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PENRIL DATACOMM NETWORKS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 34-1028216
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1300 Quince Orchard Boulevard
Gaithersburg, Maryland 20878
(Address of Principal Executive Offices Including Zip Code)
1995 LONG-TERM INCENTIVE PLAN OF
PENRIL DATACOMM NETWORKS, INC.
(Full Title of the Plan)
Copy to:
Richard D. Rose Richard D. Margolis
Penril DataComm Networks, Inc. Benesch, Friedlander,
Coplan & Aronoff, P.L.L.
1300 Quince Orchard Boulevard 2300 BP America Building
Gaithersburg, Maryland 20878 200 Public Square
(301) 417-0552 Cleveland, Ohio 44114-2378
(216) 363-4500
(Name and Address Including Zip Code; and Telephone Number,
Including Area Code, of Agent for Service)
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration
Statement
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box: [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box: [x]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price Offering Registration
to be Registered Registered(1) Per Share(2) Price Fee
----------------------------------- ---------- ---------- ------------
Common Stock, $.01
par value per share 1,000,000 shares variable 8,750,000 $3,017
----------------------------------- ---------- ---------- ------------
(1) This Registration Statement also includes an indeterminable number of
shares of Common Stock which may be issued under the anti-dilution provisions
of the plan.
(2) Estimated in accordance with Rule 457 under the Securities Act of 1933,
solely for the purpose of calculating the registration fee, on the basis of
(a) the average price at which existing options may be exercised or (b) the
average of the high and low prices of the Common Stock on May 7, 1996 as
reported on the NASDAQ National Market System with respect to all other
shares of Common Stock.
PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed below are incorporated by reference in this
Registration Statement; and all documents concurrently and subsequently
filed by Penril DataComm Networks, Inc. (the "Company") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates all
securities offered have been sold or which de-registers all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such document.
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 1995, as amended, on Form 10-K/A filed with
the Securities and Exchange Commission (the "SEC") on
February 23, 1996 (File No. 1-7886).
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended October 31, 1995, as amended, on Form 10-Q/A filed
with the SEC on February 23, 1996 (File No. 1-7886).
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended January 31, 1996 (File No. 1-7886).
(5) The description of the Company's Common Stock contained in
its Registration Statement on Form 8-A, filed with the
Commission on November 27, 1972.
For purposes of this Registration Statement, any statement
contained in a document incorporated by or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded to the extent
that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock being registered pursuant to
this Registration Statement has been passed upon by Benesch, Friedlander,
Coplan & Aronoff P.L.L., outside legal counsel to the Company. Richard D.
Margolis, a partner in the law firm of Benesch, Friedlander, Coplan &
Aronoff P.L.L., is a director of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") empowers a Delaware corporation to indemnify
any persons who are, or are threatened to be made, parties to any
threatened, pending or completed legal action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of such corporation), by reason of the fact that such
person is or was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee
or agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding provided that such officer or director
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions against expenses
(including attorney's fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of
his duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation
must indemnify him against the expenses which such officer or director
actually and reasonably incurred.
The Amended and Restated Certificate of Incorporation of the
Company provides that each person who was or is made a party to or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she, or a person of whom he or she is the
legal representative, is or was a director or officer of the Company or is
or was serving at the request of the Company as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, shall be indemnified and held harmless
by the Company to the fullest extent authorized by the Delaware Law against
all expense, liability and loss reasonably incurred by such person in
connection therewith. The Amended and Restated Certificate of
Incorporation provides that the right to indemnification is a contract
right.
The Company has purchased directors' and officers' liability
insurance in an amount of $2,000,000, covering certain liabilities incurred
by its officers and directors in connection with the performance of their
duties.
Item 7. Exemption from Registration Claimed
Not Applicable
Item 8. Exhibits.
See Exhibit Index.
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;
(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;
(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 Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed 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.
(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 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to 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 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.
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, in the City of Gaithersburg, State
of Maryland, on this 31st day of May, 1996.
PENRIL DATACOMM NETWORKS, INC.
(Registrant)
By: \s\Henry D. Epstein
-------------------------------
Henry D. Epstein
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Henry D. Epstein and Richard D.
Rose, or either of them, 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, agent, or their
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 on behalf of the Company in the capacities and on the dates
indicated.
Dated: May 31, 1996 \s\Henry D. Epstein
-------------------------------
Henry D. Epstein
Chairman of the Board, President
and Chief Executive Officer
Dated: May 31, 1996 \s\Richard D. Rose
--------------------------------
Richard D. Rose
Senior Vice President and Chief
Financial Officer
Dated: May 31, 1996 \s\Norman G. Einspruch
--------------------------------
Norman G. Einspruch
Director
Dated: May 31, 1996 \s\Ronald A. Howard
--------------------------------
Ronald A. Howard
Director
Dated: May 31, 1996 \s\John P. Lowe, Jr.
--------------------------------
John P. Lowe, Jr.
Director
Dated: May 31, 1996 \s\Richard D. Margolis
--------------------------------
Richard D. Margolis
Director
Dated: May 31, 1996 \s\Michael H. Newlin
--------------------------------
Michael H. Newlin
Director
Dated: May 31, 1996 \s\Howard M. Schneider
--------------------------------
Howard M. Schneider
Director
Exhibit Index
Exhibit No. Exhibit Description Page No.
4.1 Amended and Restated Certificate of
Incorporation of the Company (incorporated by
reference to Exhibit 3(a)(iii) to the Company's
Quarterly Report on Form 10-Q for the fiscal
quarter ended April 30, 1989). *
4.2 Certificate of Amendment to the Certificate of
Incorporation of the Company (incorporated by
reference to the Company's Registration
Statement on Form S-3 filed April 29, 1991). *
4.3 By-laws of the Company (incorporated by
reference to Exhibit 3(a)(ii) to the Company's
Annual Report on Form 10-K for the fiscal year
ended July 31, 1987). *
4.4 1995 Long-Term Incentive Plan of Penril DataComm
Networks, Inc.
5.1 Opinion of Benesch, Friedlander, Coplan &
Aronoff P.L.L., outside counsel to the Company,
regarding legality.
23.1 Consent of Deloitte & Touche LLP, independent
public accountants.
23.2 Consent of Benesch, Friedlander, Coplan &
Aronoff P.L.L. (contained in its opinion filed
as Exhibit 5.1 to this Registration Statement). N/A
24.1 Powers of Attorney (included in Part II of this
Registration Statement). N/A
* Incorporated herein by reference as indicated.