As filed with the Securities and Exchange Commission on January 31, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
GLOBECOMM SYSTEMS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-3225567
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
45 OSER AVENUE, HAUPPAUGE, NEW YORK 11788
(Address of principal executive offices) (Zip Code)
GLOBECOMM SYSTEMS INC.
1997 STOCK INCENTIVE PLAN AND
CERTAIN WARRANTS GRANTED PURSUANT TO WRITTEN COMPENSATION AGREEMENTS
(Full title of the Plans)
DAVID E. HERSHBERG
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GLOBECOMM SYSTEMS INC.
45 OSER AVENUE, HAUPPAUGE, NEW YORK 11788
(Name and address of agent for service)
(516) 231-9800
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
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1997 Stock Incentive
Plan Common Stock,
$0.001 par value 95,623 shares $26.75(2) $2,557,915.25(2) $675.29
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Warrants Pursuant to
Written Compensation
Agreements Common Stock,
$0.001 par value 57,325 shares $8.07(3) $462,612.75(3) $122.13
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Aggregate
Registration Fee: $797.42
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(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Globecomm Systems Inc. 1997 Stock
Incentive Plan and/or the Warrants Pursuant to Written Compensation
Agreements, by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of consideration
which results in an increase in the number of the outstanding shares of
Common Stock of Globecomm Systems Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of the Common Stock of Globecomm Systems
Inc. on January 28, 2000 as reported on the Nasdaq National Market.
(3) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price, as adjusted for stock splits, of the outstanding warrants.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Globecomm Systems Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission ("SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999, filed with the SEC on September 28, 1999; and
(b) The Registrant's Quarterly Report on Form 10-Q for the period
ended September 30, 1999 filed with the SEC on November 15, 1999;
and
(c) The Registrant's Registration Statement No. 000-22839 on Form
8-A12G filed with the SEC on July 15, 1997, pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "1934 Act"),
which describes the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock; and
(d) The Registrant's Registration Statement No. 000-22839 on Form
8-A12G filed with the SEC on December 4, 1998, pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "1934 Act"),
which describes the terms, rights and provisions applicable to the
Registrant's Preferred Stock Purchase Rights.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
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 Registrant's Certificate of Incorporation provides that, except to
the extent prohibited by the Delaware General Corporation Law (the "Delaware
Law"), its directors shall not be personally liable to the Registrant or its
stockholders for monetary damages for any breach of fiduciary duty as directors
of the Registrant. Under Delaware law, the directors have a fiduciary duty to
the Registrant which is not eliminated by this provision of the Certificate of
Incorporation and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non monetary relief will remain available. In
addition, each director will continue to be subject to liability under Delaware
law for breach of the director's duty of loyalty to the company, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or
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approval of stock repurchases or redemptions that are prohibited by Delaware
law. This provision also does not affect the directors' responsibilities under
any other laws, such as the Federal securities laws or State or Federal
environmental laws. The Registrant has obtained liability insurance for its
officers and directors. Section 145 of the Delaware Law empowers a corporation
to indemnify its directors and officers and to purchase insurance with respect
to liability arising out of their capacity or status as directors and officers,
provided that this provision shall not eliminate or limit the liability of a
director: (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
arising under Section 174 of the Delaware Law, or (iv) for any transaction from
which the director derived an improper personal benefit. The Delaware Law
provides further that the indemnification permitted thereunder shall not be
deemed exclusive of any other rights to which the directors and officers may be
entitled under the corporation's bylaws, any agreement, vote of stockholders or
otherwise. The Registrant's Certificate of Incorporation eliminates the personal
liability of directors to the fullest extent permitted by Section 102(b)(7) of
the Delaware Law and provides that to the fullest extent permitted by law, the
Corporation shall fully indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that such person is or was a director or officer of the
Corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against 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.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent as to which indemnification will be
required or permitted under the Certificate of Incorporation. The Registrant is
not aware of any threatened litigation or proceeding that may result in a claim
for such indemnification.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to the Registrant's Registration Statements No.
000-22839 on Form 8-A12G which are incorporated herein by
reference pursuant to Item 3(c) and S(d) to this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1997 Stock Incentive Plan.
99.2* Notice of Grant.
99.3* Stock Option Agreement.
99.4* Addendum to Stock Option Agreement (limited Stock
Appreciation Right).
99.5* Stock Issuance Agreement.
99.6* Notice of Grant of Automatic Stock Option.
99.7* Automatic Stock Option Agreement.
99.8 Common Stock Purchase Warrant-Stephen Judlowe.
99.9 Common Stock Purchase Warrant-John Balan.
99.10 Common Stock Purchase Warrant-Robert Schaefer.
99.11 Common Stock Purchase Warrant-Daphne Kamely.
99.12 Written Compensation Agreement-Stephen Judlowe.
99.13 Written Compensation Agreement-John Balan.
99.14 Written Compensation Agreement-Robert Schaefer.
99.15 Written Compensation Agreement-Daphne Kamely.
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* Exhibits 99.2 through 99.7 are incorporated by reference to Exhibits 99.2
through 99.7, respectively, to Registrant's Registration Statement No. 333-33137
on Form S-8, filed with the Commission on August 7, 1997.
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 1933 Act, (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 thereof) 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 (1)(i) and (1)(ii) shall
not apply if 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 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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 and (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 Registrant's 1997
Stock Incentive Plan or the warrants granted pursuant to written compensation
agreements.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that, in the opinion of the SEC, such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
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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 City of Hauppauge, State of New York, on this 31 day of
January, 2000.
GLOBECOMM SYSTEMS INC.
By: /s/ Kenneth A. Miller
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Kenneth A. Miller
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Globecomm Systems Inc.,
a Delaware corporation, do hereby constitute and appoint David E. Hershberg,
Chief Executive Officer, Kenneth A. Miller, President and Andrew C. Melfi, Chief
Financial Officer, and each of them individually, with full powers of
substitution and resubstitution, the lawful attorneys-in-fact and agents with
full power and authority to do any and all acts and things and to execute any
and all instruments which said attorneys and agents, determine may be necessary
or advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules or regulations or requirements
of the Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that said attorneys and agents, shall
do or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ David E. Hershberg Chairman, Chief Executive January 31, 2000
- -------------------------- Officer and Director (Principal
David E. Hershberg Executive Officer)
/s/ Kenneth A. Miller President and Director January 31, 2000
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Kenneth A. Miller
/s/ Andrew C. Melfi Vice President and Chief January 31, 2000
- -------------------------- Financial Officer (Principal
Andrew C. Melfi Financial and Accounting
Officer)
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Signature Title Date
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/s/ Stephen C. Yablonski Vice President and Director January 31, 2000
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Stephen C. Yablonski
/s/ Donald G. Woodring Vice President and Director January 31, 2000
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Donald G. Woodring
/s/ Herman Fialkov Director January 31, 2000
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Herman Fialkov
/s/ C. J. Waylan Director January 31, 2000
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C. J. Waylan
/s/ A. Robert Towbin Director January 31, 2000
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A. Robert Towbin
Director
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Benjamin Duhov
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
GLOBECOMM SYSTEMS INC.
EXHIBIT INDEX
Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to the Registrant's Registration Statements No.
000-22839 on Form 8-A12G which are incorporated herein by
reference pursuant to Item 3(c) and S(d) to this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1997 Stock Incentive Plan.
99.2* Notice of Grant.
99.3* Stock Option Agreement.
99.4* Addendum to Stock Option Agreement (limited Stock
Appreciation Right).
99.5* Stock Issuance Agreement.
99.6* Notice of Grant of Automatic Stock Option.
99.7* Automatic Stock Option Agreement.
99.8 Common Stock Purchase Warrant-Stephen Judlowe.
99.9 Common Stock Purchase Warrant-John Balan.
99.10 Common Stock Purchase Warrant-Robert Schaefer.
99.11 Common Stock Purchase Warrant-Daphne Kamely.
99.12 Written Compensation Agreement-Stephen Judlowe.
99.13 Written Compensation Agreement-John Balan.
99.14 Written Compensation Agreement-Robert Schaefer.
99.15 Written Compensation Agreement-Daphne Kamely.
* Exhibits 99.2 through 99.7 are incorporated by reference to Exhibits 99.2
through 99.7, respectively, to Registrant's Registration Statement No. 333-33137
on Form S-8, filed with the Commission on August 7, 1997.