As filed with the Securities and Exchange Commission on December 12, 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
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COMTECH TELECOMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
Delaware 11-2139466
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
105 Baylis Road
Melville, New York, 11747
(Address of principal executive offices) (Zip code)
COMTECH TELECOMMUNICATIONS CORP.
2000 STOCK INCENTIVE PLAN
Amended and Restated Effective as of October 19, 2000
COMTECH TELECOMMUNICATIONS CORP.
2001 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Mr. Fred Kornberg
Comtech Telecommunications Corp.
105 Baylis Road
Melville, New York, 11747
631-777-8900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------------
Copies of all communications to:
Robert A. Cantone, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
212-969-3000
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed maximum Proposed maximum Amount of
securities registered(1) offering price aggregate registration
to be per share(2) offering fee
registered price(2)
- --------------------------------------------------------------------------------
Common 2,032,935 $11.125 $22,616,402 $5,971
stock, par shares
value
$0.10
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(1) Represents the maximum of 1,732,935 shares of the common stock, par
value $0.10 (the "Common Stock"), of Comtech Telecommunications Corp.
issuable under the Comtech Telecommunications Corp. 2000 Stock
Incentive Plan, as Amended and Restated Effective as of October 19,
2000, and the maximum of 300,000 shares of Common Stock issuable under
the Comtech Telecommunications Corp. 2001 Employee Stock Purchase
Plan. Also includes an aggregate of 2,032,935 preferred stock purchase
rights attached to the shares of Common Stock pursuant to the Rights
Agreement, dated as of December 15, 1998, between Comtech
Telecommunications Corp. and American Stock Transfer and Trust
Company, as Rights Agent.
Pursuant to Rule 416 promulgated under the Securities Act of 1933,
this Registration Statement also registers both an indeterminate
amount of interests in the Comtech Telecommunications Corp. 2001
Employee Stock Purchase Plan and such additional shares of Common
Stock and preferred stock purchase rights as may be offered or issued
under the plans to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) promulgated under the Securities Act of 1933
and calculated on the basis of the high and low sale prices of the
Common Stock as reported on the National Market on December 6, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
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The following documents filed with the Securities and Exchange Commission
by Comtech Telecommunications Corp., a Delaware corporation (the "Corporation"
or the "Registrant"), are incorporated herein by reference:
(1) Annual Report on Form 10-K for the fiscal year ended July 31,
2000.
(2) The description of the Corporation's common stock, $0.10 par
value (the "Common Stock"), contained in the Corporation's
Registration Statement on Form 8-A dated November 22, 1974, as
amended by the Corporation's Current Report on Form 8-K dated
December 11, 2000.
All documents subsequently filed by 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 that all remaining 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. Any
statement in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
Registration Statement to the extent that a statement contained herein or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any 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.
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Not applicable.
Item 5. Interest of Named Experts and Counsel.
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The validity of the shares of Common Stock offered hereby will be passed
upon for the Registrant by the law firm of Proskauer Rose LLP, 1585
Broadway, New York, New York 10036. Richard L. Goldberg, a member of the
Registrant's Board of Directors, is a partner in said firm.
Item 6. Indemnification of Directors and Officers.
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As permitted under the Delaware General Corporation Law ("DGCL) of the
State of Delaware, Article VII of the Registrant's Restated Certificate of
Incorporation, as amended, contains the following provisions regarding
indemnification of directors and officers:
Section 1. The Corporation shall 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 (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a
director, officer or employee of the Corporation, or is or was serving
at the request of the Corporation as a director, officer or employee
of another corporation,
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partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
Section 2. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer or employee of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless
and only to the extent that the Court of Chancery of Delaware or the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. To the extent that a director, officer or employee of the
Corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections 1 and 2 of
this Article VII, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article
VII (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that
indemnification of the director, officer or employee is proper in the
circumstances because he has met the applicable standard of conduct
set forth in said Sections 1 and 2. Such determination shall be made
(1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. Expenses incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding, or threat
thereof, may be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding
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as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer or
employee to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation as authorized
in this Article VII.
Section 6. The indemnification provided by this Article VII shall not
be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any By-Law, agreement, vote of
stockholders or disinterested directors, statute, court decision,
insurance policy or otherwise, now or hereafter in effect, and shall
continue as to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 7. The Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer or employee of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer or employee of another corporation,
partnership, joint venture, trust or other enterprise, against any
liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of this Article VII or of the DGCL.
Section 8. For purposes of this Article VII, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director,
officer or employee of the Corporation which imposes duties on, or
involves services by, such director, officer or employee with respect
to any employee benefit plan, its participants or beneficiaries; and a
person who acting in good faith and in a manner he reasonably believes
to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in
this Article VII.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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4.1 Certificate of Incorporation of the Registrant. (Incorporated herein
by reference to Exhibit 3(a) of the Registrant's Annual Report on Form
10-K for the fiscal year ended July 31, 1987.)
4.2 Certificate of Amendment to the Certificate of Incorporation of the
Registrant. (Incorporated herein by reference to Exhibit 3(b) of the
Registrant's Annual Report on Form 10-K for the fiscal year ended July
31, 1991.)
4.3 Certificate of Amendment to the Certificate of Incorporation of the
Registrant. (Incorporated herein by reference to Exhibit 3(d) to the
Registrant's Annual Report on Form 10-K for the fiscal year ended July
31, 1994.)
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4.4 Certificate of Amendment to the Certificate of Incorporation of
the Registrant. (Incorporated herein by reference to Exhibit 3(e)
to the Registrant's Annual Report on Form 10-K for the fiscal year
ended July 31, 1998.)
4.5 Certificate of Amendment to the Certificate of Incorporation of
the Registrant. (Incorporated herein by reference to Exhibit 3(g)
to the Registrant's Annual Report on Form 10-K for the fiscal year
ended July 31, 2000.)
4.6 Rights Agreement, dated as of December 15, 1998, between the
Registrant and American Stock Transfer and Trust Company, as Trust
Agent. (Incorporated herein by reference to Exhibit 4.1 to the
Registrant's Amended Current Report on Form 8-K/A dated December 23,
1998.)
4.7 By-Laws of the Registrant. (Incorporated by reference to Exhibit
3(c) of the Registrant's Annual Report on Form 10-K for the year
ended July 31, 1998.)
5 Opinion of Proskauer Rose LLP
23.1 Consent of Proskauer Rose LLP (included in its opinion filed as
Exhibit 5).
23.2 Consent of KPMG LLP.
25 Power of Attorney (included on the Signature Pages to this
Registration Statement)
The Registrant will submit or has submitted the Comtech Telecommunications
Corp. 2001 Employee Stock Purchase Plan to the Internal Revenue Service in a
timely manner, and has made or will make all changes required by the Internal
Revenue Service in order to qualify said Plan.
Item 9. Undertakings.
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(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(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 information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission
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by the Registrant pursuant to Section 13 or 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 the 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.
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any financial
statements required by Rule 3-19 of this chapter at the start of any
delayed offering or throughout a continuous offering. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not
be furnished, provided, that the registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant
to this paragraph (a)(4) and other information necessary to ensure that all
other information in the prospectus is at least as current as the date of
those financial statements. Notwithstanding the foregoing, with respect to
registration statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Act or Rule 3-19 of this chapter if such financial
statements and information are contained in periodic reports filed with or
furnished to the Commission 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 Form F-3.
(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 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 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.
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SIGNATURES
The Registrant. 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 Melville, County of Suffolk, State of New York,
on December 12, 2000.
COMTECH TELECOMMUNICATIONS CORP.
By: /s/ FRED KORNBERG
-------------------------------
Fred Kornberg
Chairman, Chief Executive Officer
and President
Signatures Capacity Date
- ---------- -------- ----
/s/ FRED KORNBERG Chairman, Chief Executive December 12, 2000
- --------------------------- Officer, President and
Fred Kornberg Director
(Principal Executive Officer)
/s/ J. PRESTON WINDUS, JR. Senior Vice President and December 12, 2000
- --------------------------- Chief Financial Officer
J. Preston Windus, Jr. (Principal Financial and
Accounting Officer)
/s/ GEORGE BUGLIARELLO Director December 12, 2000
- ---------------------------
George Bugliarello
/s/ RICHARD L. GOLDBERG Director December 12, 2000
- ---------------------------
Richard L. Goldberg
/s/ GERARD R. NOCITA Director December 12, 2000
- ---------------------------
Gerard R. Nocita
/s/ JOHN B. PAYNE III Director December 12, 2000
- ---------------------------
John B. Payne III
/s/ SOL S. WEINER Director December 12, 2000
- ---------------------------
Sol S. Weiner
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The 2001 Employee Stock Purchase Plan. Pursuant to the requirements of the
Securities Act of 1933, the trustees (or other persons who administer the
employee benefit plan) have duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Melville, County of Suffolk, State of New York, on December 12, 2000.
COMTECH TELECOMMUNICATIONS CORP.
2001 EMPLOYEE STOCK PURCHASE PLAN
By: /s/ GEORGE BUGLIARELLO
-------------------------------------------------
Name: George Bugliarello
Title: Member of Executive Compensation Committee
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EXHIBIT 5
December 12, 2000
The Board of Directors
Comtech Telecommunications Corp.
105 Baylis Road
Melville, New York 11747
Ladies and Gentlemen:
We are acting as counsel to Comtech Telecommunications Corp., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company under the
Securities Act of 1933 with respect to the offer and sale of up to an aggregate
of 2,032,935 shares (the "Shares") of Common Stock, par value $0.10, of the
Company (the "Common Stock") under the Comtech Telecommunications Corp. 2000
Stock Incentive Plan, as amended and restated as of October 19, 2000, and the
Comtech Telecommunications Corporation 2001 Employee Stock Purchase Plan
(together, the "Plans").
We have examined and relied upon originals or copies, certified or
otherwise authenticated to our satisfaction, of all such corporate records,
documents, agreements, and instruments relating to the Company, and certificates
of public officials and of representatives of the Company, and have made such
investigations of law and have discussed with representatives of the Company and
such other persons such questions of fact, as we have deemed proper and
necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the
Shares, to the extent consisting of shares of Common Stock that are originally
issued by the Company in connection with the Plans, are duly authorized and,
upon issuance in accordance with the terms of the Plans, will be validly issued,
fully paid, and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
PROSKAUER ROSE LLP
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Comtech Telecommunications Corp.
We consent to the use of our report dated October 19, 2000 incorporated herein
by reference and in the prospectus.
KPMG LLP
Melville, New York
December 12, 2000