SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
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 jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
6 Rubber Avenue
Naugatuck, CT 06770; (203) 729-0271
(address and telephone number of registrant's principal
executive offices and principal place of business)
2005 Stock and Bonus Plan
Director's Stock Option
(Full title of the Plan)
Gerald Gordon, Esq.
Weisman Celler Spett & Modlin, P.C.
445 Park Avenue
New York, New York 10022
(Name and address of agent for service)
(212) 371-5400
(Telephone number, including Area Code, of Agent for Service)
Calculation of Registration Fee
Proposed Proposed
Title of Each Offering Maximum Amount of
Class of Securities Amount to be Price per Aggregate Registration
to be Registered Registered Per share Offering Price Fee
Common Stock 2,951,121 $0.27 $796,803 $85.26
1) The Offering Price is used solely for purposes of estimating the
registration fee pursuant to Rule 457(h) promulgated pursuant to the
Securities Act of 1933 based on the Pink Sheets last sale price on
February 17, 2006.
Part I
Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.
The information required by Part I of Form S-8 will be contained in the
Section 10(a) Prospectus omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended and the Note to Part
I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
The information required by Part I of Form S-8 will be contained in the
Section 10(a) Prospectus omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended and the Note to Part
I of Form S-8.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of documents by Reference.
The following are hereby incorporated by reference:
(a) The Registrant's latest annual report on Form 10-KSB, for the fiscal
year ended September 30, 2005, filed on January 13, 2006, as amended on February
3, 2006.
(b) The Registrant's report on Form 10-QSB filed on February 14, 2006.
(c) The Registrant's report on Form 8-K filed on February 21, 2006.
(d) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Form 10-KSB/A referred to in (a) above.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 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 then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be part
thereof 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 the purposes of this registration
statement 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 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.
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Item 4. Description of Securities.
Not Applicable
Item 5. Interest of Named Experts and Counsel.
Howard S. Modlin, President of the law firm Weisman Celler Spett & Modlin,
P.C., which is delivering the legal opinion covering the validity of the Common
Stock covered by this Registration Statement is Chairman of the Board,
President, Chief Executive Officer and Secretary of the Registrant and received
an option to purchase 551,121 shares of Common Stock at $0.61 per share under
the 2005 Stock and Bonus Plan and a Director Stock Option to purchase 551,121
shares at $0.50 per share.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (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) for
payments of unlawful dividends or unlawful stock repurchases or redemptions or
(iv) for any transaction from which the director derived an improper personal
benefit. The Registrant's Restated Certificate of Incorporation, as amended,
contains such a provision.
Section 145 of the Delaware General Corporation Law permits a corporation
to provide in its certificate of incorporation that a corporation may indemnify
directors and officers as well as other employees and individuals against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation - a "derivative action"), if they acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interest of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorney's fees) incurred in
connection with defense or settlement of such action, and the statute requires
court approval before there can be any indemnification where the person seeking
indemnification has been found liable to the corporation. The Registrant's
Restated Certificate of Incorporation, as amended, contains such a provision.
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The Registrant has in effect a directors and officers liability insurance
policy providing insurance for the directors and officers of the Registrant
against certain liabilities asserted against them or incurred by them, including
liabilities under the Securities Act of 1933 and the Securities Exchange Act of
1934. The Registrant pays the entire premium of this policy.
Item 7. Exemption from Registration Claimed.
The stock options granted on January 26, 2005 and November 22, 2005 and
Director's Stock Option were issued pursuant to the exemption under Section 4(2)
of the Securities Act of 1933, as amended for transactions by an issuer not
involving any public offering.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K.
Exhibit No. Description
4.1 The Registrant's Corrected Certificate of Amended and Restated
Certificate of Incorporation *
4.2 2005 Stock and Bonus Plan
4.3 Form of Stock Option under 2005 Stock and Bonus Plan
4.4 Director's Stock Option
5.1 Opinion of Weisman Celler Spett & Modlin, P.C.
23.1 Consent of Eisner LLP
23.2 Consent of Weisman Celler Spett & Modlin, P.C. (included in
Exhibit 5.1)
(1) Incorporated by reference to Exhibit 3.1 of Form 10-K for the year ended
September 30, 2004.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(a) (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 (the "Securities 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 hereof) which, individually or in the
aggregate, represents 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 the registration
statement or any material change to such information in the registration
statement;
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(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) 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 section 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) To deliver or cause to be delivered with the prospectus, to each
person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
(d) That 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 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 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, 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 Naugatuck, Connecticut on February 21, 2006.
GENERAL DATACOMM INDUSTRIES, INC.
By /s/ WILLIAM G. HENRY
----------------------------------------------
William G. Henry, Vice President, Finance
and Administration and Chief Financial Officer
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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/ HOWARD S. MODLIN Chief Executive February 21, 2006
- -------------------- Officer and Chairman
Howard S. Modlin of the Board of Directors
/s/ WILLIAM G. HENRY Chief Financial Officer February 21, 2006
- --------------------
William G. Henry
/s/ LEE M. PASCHALL Director February 21, 2006
- -------------------
Lee M. Paschall
/s/ JOHN L. SEGALL Director February 21, 2006
- ------------------
John L. Segall
_________________ Director
Aletta Richards
EXHIBIT INDEX
Exhibit No. Description
4.1 The Registrant's Corrected Certificate of Amended and Restated Certificate
of Incorporation*
4.2 2005 Stock and Bonus Plan
4.3 Form of Stock Option under 2005 Stock and Bonus Plan
4.4 Director's Stock Option
5.1 Opinion of Weisman Celler Spett & Modlin, P.C.
23.1 Consent of Eisner LLP
23.2 Consent of Weisman Celler Spett & Modlin, P.C. (included in Exhibit 5.1)
* Incorporated by reference to Exhibit 3.1 of Form 10-K for the year ended
September 30, 2004.
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