As filed with the Securities and Exchange Commission on July 30, 1997
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ORION NETWORK SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-2008654
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
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2440 RESEARCH BOULEVARD, SUITE 400
ROCKVILLE, MARYLAND 20850
(Address of principal executive offices)
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ORION NETWORK SYSTEMS, INC. 1997 STOCK OPTION PLAN
(Full title of the plan)
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RICHARD H. SHAY, ESQ.
2440 RESEARCH BOULEVARD, SUITE 400
ROCKVILLE, MARYLAND 20850
(301) 258-8101
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
STEVEN M. KAUFMAN, ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (1) offering price (1) registration fee (1)
- -----------------------------------------------------------------------------------------------------------------
Common Stock,
par value $.01 1,300,000 $12.875 $16,737,500 $5,072
=================================================================================================================
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee. The proposed maximum
offering price per share was determined based upon the average of the high
and low prices per share of the Orion Network Systems, Inc. Common Stock on
July 25, 1997, as reported on the Nasdaq National Market.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to eligible directors as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Orion Network Systems, Inc. (the "Registrant") is a recently formed
Delaware corporation that is the corporate successor to Orion Oldco Services,
Inc., which has been filing reports with the Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), since August 1995. The
Registrant hereby incorporates by reference into this Registration Statement the
following documents filed with the Commission by the Registrant:
(a) Registrant's annual report on Form 10-K dated March 31,
1997 and amendment thereto on Form 10-K/A dated June 25, 1997 filed pursuant to
Sections 13(a) and 15(d) of the Exchange Act, which contain audited financial
statements for Registrant's fiscal year ended December 31, 1996;
(b) All other reports of the Registrant filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31, 1996, including
the Registrant's quarterly report on Form 10-Q dated May 15, 1997;
(c) The description of the Registrant's Common Stock, par
value $.01 per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-B filed with the Commission on January 31,
1997; and
(d) The Registrant's reports on Form 8-K filed with the
Commission on February 14, 1997 and March 26, 1997, respectively.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be part hereof from the date of filing of
such documents or reports. 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 other subsequently filed document which
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also is or 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. (The Common Stock is registered under Section 12 of the
Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Certificate of Incorporation, as amended (the
"Restated Certificate of Incorporation"), provides that the Company's directors
will not be liable for monetary damages for breach of the directors' fiduciary
duty of care to the Company and its stockholders. This provision in the Restated
Certificate of Incorporation does not eliminate the duty of care, and in
appropriate circumstances equitable remedies such as an injunction or other
forms of non-monetary relief would remain available under Delaware law. In
accordance with the requirements of Delaware law, as amended, the Restated
Certificate of Incorporation provides that the Company's directors would remain
subject to liability for monetary damages (i) for any breach of their duty of
loyalty to the Company or its shareholders, (ii) for acts or omissions not in
good faith or involving intentional misconduct or knowing violation of law,
(iii) under Section 174 of the Delaware Code for approval of an unlawful
dividend or an unlawful stock purchase or redemption and (iv) for any
transaction from which the director derived an improper personal benefit. This
provision also does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
The Company's Restated Certificate of Incorporation also provides that,
except as expressly prohibited by law, the Company shall indemnify any person
who was or is a party (or threatened to be made a party) to any threatened,
pending or completed action, suit or proceeding by reason of the fact that such
person is or was director or office of the Company (or is or was serving at the
request of the Company as a director or officer of another enterprise), against
expenses, liabilities and losses (including attorneys' fees), judgments, fines
and amounts paid or to be paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding if such person
acted in good faith and a manner such person reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. Such indemnification shall not be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
Company unless (and only to the extent that) the Delaware Court of Chancery or
the court in which such action or suit was brought determines that, in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity.
Section 145 of the General Corporation Law of the State of Delaware
empowers a corporation incorporated under that statute to indemnify its
directors, officers, employees and agents and its former directors, officers,
employees and agents and those who serve in such capacities with another
enterprise at its request against expenses, as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred by them
in connection with the defense of any action, suite or proceeding in which they
or any of them were or are made parties or are threatened to be made parties by
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reason of their serving or having served in such capacity. The power to
indemnify shall only exist where such officer, director, employee or agent has
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of the corporation and, in the case of a
criminal action, where such person had no reasonable cause to believe his
conduct was unlawful. However, in an action or suit by or in the right of the
corporation, unless a court shall determine to the contrary, where such a person
has been adjudged liable to the corporation, the corporation shall have no power
of indemnification. Indemnity is mandatory to the extent a claim, issue or
matter has been successfully defended. Indemnification is not deemed exclusive
of any other rights to which those indemnified may be entitled, under any
by-law, agreement, vote of stockholders or otherwise. A Delaware corporation
also has the power to purchase and maintain insurance on behalf of the persons
it has the power to indemnify, whether or not indemnity against such liability
would be allowed under the statute.
The Company has an insurance policy which will insure Directors and
officers against damages from actions and claims incurred in the course of their
duties and will insure the Company against expenses incurred in defending
lawsuits arising from certain alleged acts of the Directors and officers.
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 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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3.1 Certificate of Amendment of Certificate of Incorporation of
Orion Network Systems, Inc.
4.1 Restated Certificate of Incorporation, as amended, of
Registrant (filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form 8-B filed with the Commission
on January 31, 1997, and incorporated herein by reference).
4
4.2 Bylaws, as amended, of the Registrant (filed as Exhibit 3.2
to the Registrant's Registration Statement on Form 8-B filed
with the Commission on January 31, 1997, and incorporated
herein by reference).
4.3 Form of Common Stock Certificate (filed as Exhibit 4.5 to
the Registrant's Registration Statement on Form S-4 (File
No. 333- 19795), and incorporated herein by reference).
4.4 Orion Network Systems, Inc. 1997 Stock Option Plan.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of
the securities being registered.
21.1 List of subsidiaries of Orion Network Systems, Inc.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion
filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature pages).
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;
(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 or Form S-8 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 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.
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(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, 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 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.
(c) The undertaking concerning indemnification is as set forth under
the response to Item 6.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Rockville, State of Maryland on the 30th day of July,
1997.
ORION NETWORK SYSTEMS, INC.
BY: /s/ W. NEIL BAUER
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W. Neil Bauer
President and Chief Executive Officer
POWER OF ATTORNEY
Know all Men by These Presents, that each individual whose signature
appears below constitutes and appoints John G. Puente, W. Neil Bauer and David
J. Frear, and each of them, his true and lawful attorney-in-fact and agent, with
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 (including
post-effective 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 attorneys-in-fact and
agents, and each of them, 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 attorneys-in- fact and
agents, or any of them, or their, his or her substitutes or substitute, 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 below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ W. NEIL BAUER Chief Executive July 30, 1997
- ------------------------------ Officer and Director
W. Neil Bauer, President (Principal Executive Officer)
/s/ DAVID J. FREAR Chief Financial July 30, 1997
- ------------------------------ Officer and Treasurer
David J. Frear, Vice President (Principal Financial Officer
and Principal Accounting Officer)
/s/ GUSTAVE M. HAUSER Director July 30, 1997
- ------------------------------
Gustave M. Hauser, Chairman
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/s/ JOHN V. SAEMAN Director July 30, 1997
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John V. Saeman
/s/ JOHN G. PUENTE Director July 30, 1997
- -----------------------------
John G. Puente
/s/ RICHARD J. BREKKA Director July 30, 1997
- -----------------------------
Richard J. Brekka
/s/ WARREN B. FRENCH JR. Director July 30, 1997
- -----------------------------
Warren B. French, Jr.
/s/ SIDNEY S. KAHN Director July 30, 1997
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Sidney S. Kahn
/s/ W. ANTHONY RICE Director July 30, 1997
- -----------------------------
W. Anthony Rice
/s/ ROBERT M. VAN DEGNA Director July 30, 1997
- -----------------------------
Robert M. Van Degna
/s/ BARRY HOROWITZ Director July 30, 1997
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Barry Horowitz
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EXHIBIT INDEX
Exhibit
Number Description Page
------ ----------- ----
3.1 Certificate of Amendment of Certificate of Incorporation of Orion
Network Systems, Inc.
4.1 Restated Certificate of Incorporation, as amended, of *
Registrant (filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form 8-B filed with the Commission
on January 31, 1997, and incorporated herein by reference).
4.2 Bylaws, as amended, of the Registrant (filed as Exhibit 3.2 to *
the Registrant's Registration Statement on Form 8-B filed with
the Commission on January 31, 1997, and incorporated herein by
reference).
4.3 Form of Common Stock Certificate (filed as Exhibit 4.5 to the *
Registrant's Registration Statement on Form S-4 (File No.
333-19795), and incorporated herein by reference).
4.4 Orion Network Systems, Inc. 1997 Stock Option Plan. *
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of
the securities being registered.
21.1 List of subsidiaries of Orion Network Systems, Inc.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion *
filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature pages). *