1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 29, 1997.
REGISTRATION NO. 333-20569
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
GENERAL DATACOMM INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-0853856
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1579 STRAITS TURNPIKE
MIDDLEBURY, CONNECTICUT 06762-1299
(203) 574-1118
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
HOWARD S. MODLIN, ESQ.
WEISMAN CELLER SPETT & MODLIN, P.C.
445 PARK AVENUE, NEW YORK, NEW YORK 10022
(212) 371-5400
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE).
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective.
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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
- ---------------------------------------------------------------------------------------------------------
9% Cumulative Convertible Exchangeable
Preferred Stock, par value, $1.00 per
share.................................. 800,000 $25(1) $20,000,000 $6,060.61
- ---------------------------------------------------------------------------------------------------------
9% Convertible Subordinated Debentures
due 2006............................... $20,000,000 NA NA NA(2)
- ---------------------------------------------------------------------------------------------------------
Common Stock, par value, $.10 per
share.................................. 1,465,201 NA NA NA(3)
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee based upon the $25 initial sale price of the 9% Cumulative
Convertible Exchangeable Preferred Stock, par value, $1.00 per share (the
"9% Preferred Stock").
(2) No additional consideration will be received by the Registrant for the
issuance of the 9% Convertible Subordinated Debentures due 2006 upon
exchange of the 9% Preferred Stock. Accordingly, no additional registration
fee is required in respect of the Debentures pursuant to Rule 457(i) under
the Securities Act.
(3) No additional consideration will be received by the registrant for the
issuance of shares of the Registrant's Common Stock, par value $.10 per
share (the "Common Stock") upon conversion of the 9% Preferred Stock or the
Debentures. Accordingly, no additional registration fee is required in
respect of such shares of Common Stock.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
2
FORM S-3, PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses which other than the SEC
registration fee are estimates payable by the registrant in connection with the
sale and distribution of the shares registered hereby including the original
private offering.
SEC registration fee............................................ $ 6,060.61
Placement agent fees and expenses............................... 653,780.00
Legal and accounting fees and expenses.......................... 150,000.00
Printing expenses............................................... 25,000.00
Miscellaneous................................................... 15,159.39
-----------
Total................................................. $850,000.00
The Selling Holders will pay any sales commissions or underwriting
discounts incurred in connection with the sale of securities registered
hereunder.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Article Tenth of the registrant's Restated Certificate
of Incorporation filed as Exhibit 3.1 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1988, which is incorporated by
reference for information concerning indemnification of directors and officers.
Section 145 of the General Corporation Law of Delaware permits or requires
indemnification of officers and directors in the event that certain statutory
standards of conduct are met. However, reference is made to Item 9(d) with
respect to indemnification for liabilities arising under the Securities Act.
Under an insurance policy with The Chubb Group of Companies, the directors
and certain officers of the undersigned registrant and its subsidiaries are
indemnified against certain losses arising from certain claims which may be made
against such persons, by reason of their being such directors or officers.
ITEM 16. EXHIBITS
*3.1 Restated Certificate of Incorporation of the Corporation
(Incorporated by reference from Form 10-Q for quarter ended June
30, 1988, Exhibit 3.1. Amendments thereto are filed as Exhibit 3.1
to Form 10-Q for quarter ended March 3l, 1990.)
*3.2 Amended and Restated By-laws of the Corporation (Incorporated by
reference from Exhibit 3.2 to Form 10-K for year ended September
30, 1987.)
*4.1 Certificate of the Powers, Designation, Preferences, Rights and
Limitations of 9% Cumulative Convertible Exchangeable Preferred
Stock. (Incorporated by reference from Form 8-K dated October 8,
1996, Exhibit 4)
*4.2 Form of Indenture.
*5. Opinion of Weisman Celler Spett & Modlin, P.C.
*10.1 Registration Rights Agreement
*12. Statement of Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
24. Consent
(a) Coopers & Lybrand L.L.P.
(b) Weisman Celler Spett & Modlin, P.C. (contained in Exhibit 5)
*25. Statement of Eligibility of Trustee.
- ---------------
* previously filed
II-1
3
ITEM 17. 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 this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement, provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those clauses 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 this
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 herein 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 the purpose of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13 or 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
undersigned registrant pursuant to the foregoing provisions, or otherwise, the
undersigned 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 undersigned 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
undersigned 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 will be governed by the final
adjudication of such issue.
II-2
4
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 29th day of
January 1997.
GENERAL DATACOMM INDUSTRIES, INC.
By: /s/ CHARLES P. JOHNSON
------------------------------------
Charles P. Johnson, Chairman of the
Board and Chief Executive Officer
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/ CHARLES P. JOHNSON Chairman of Board and Chief January 29, 1997
- ----------------------------------- Executive Officer
Charles P. Johnson
/s/ WILLIAM S. LAWRENCE Senior Vice President-Finance and January 29, 1997
- ----------------------------------- Chief Financial Officer
William S. Lawrence
/s/ WILLIAM G. HENRY Vice President and Corporate January 29, 1997
- ----------------------------------- Controller
William G. Henry
/s/ HOWARD S. MODLIN Director January 29, 1997
- -----------------------------------
Howard S. Modlin
/s/ FREDERICK R. CRONIN Director January 29, 1997
- -----------------------------------
Frederick R. Cronin
Director January , 1997
- -----------------------------------
Lee M. Paschall
Director January , 1997
- -----------------------------------
John L. Segall
II-3
5
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION PAGE
- ----------- ----------------------------------------------------------------------- ------
*3.1 Restated Certificate of Incorporation of the Corporation (Incorporated
by reference from Form 10-Q for quarter ended June 30, 1988, Exhibit
3.1. Amendments thereto are filed as Exhibit 3.1 to Form 10-Q for
quarter ended March 3l, 1990.)
*3.2 Amended and Restated By-laws of the Corporation (Incorporated by
reference from Exhibit 3.2 to Form 10-K for year ended September 30,
1987.)
*4.1 Certificate of the Powers, Designation, Preferences, Rights and
Limitations of 9% Cumulative Convertible Exchangeable Preferred Stock.
(Incorporated by reference from Form 8-K dated October 8, 1996, Exhibit
4)
*4.2 Form of Indenture.
*5. Opinion of Weisman Celler Spett & Modlin, P.C.
*10.1 Registration Rights Agreement
*12. Statement of Computation of Ratio of Earnings to Fixed Charges and
Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends.
24. Consent
(a) Coopers & Lybrand L.L.P.
(b) Weisman Celler Spett & Modlin, P.C. (contained in Exhibit 5)
*25. Statement of Eligibility of Trustee.
- ---------------
* previously filed