As filed with the Securities and Exchange Commission on ____________
Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
Registration Statement
Under the Securities Act of 1933
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EAGLE BROADBAND, INC.
(Exact name of Registrant as specified in its charter)
Texas 76-0494995
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification Number)
organization)
101 Courageous Drive Dr. H. Dean Cubley, Chairman & CEO
League City, Texas 77573-3925 101 Courageous Drive
(281) 538-6000 League City, Texas 77573-3925
(Address, including (281) 538-6000
zip code, and (Name, address, including zip code,
telephone number, including and telephone number, including
area code, of registrant's area code, of agent for service)
principal executive offices)
EAGLE BROADBAND, INC., 2003 STOCK INCENTIVE AND COMPENSATION, AS AMENDED
(Full Title of the Plans)
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copy to:
Weed & Co. LLP
4695 MacArthur Court, Suite 1430
Newport Beach, CA 92660
Phone: (949) 475-9086
Facsimile: (949) 475-9087
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities To Be Amount Being Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
- --------------------------------------------- ---------------------- ---------------------- ----------------
Common Stock, par value
$0.001 per share........... 3,000,000 $0.21 $ 660,000 $ 60.72
- ------------------------------------------------------------------------------------------- ----------------
TOTAL $ 60.72
=========================================================================================== ================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
number of shares of the issuer's Common Stock registered hereunder will
be adjusted in the event of stock splits, stock dividends or similar
transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h), on the basis of the high and
low prices of the Common Stock as reported by the American Stock
Exchange on May 5, 2003.
Explanatory Note: Eagle Broadband, Inc., a Texas corporation, previously filed a
Registration Statement on Form S-8 (File No. 333-103829) on March 14, 2003,
registering 2,955,000 shares of its common stock to be issued pursuant to the
Eagle Broadband 2003 Stock Incentive and Compensation Plan. The registrant's
board of directors subsequently approved an amendment to the 2003 Stock
Incentive and Compensation Plan and registration statement on Form S-8 to
increase the amount of shares authorized under the stock plan to 5,955,000
shares and register an additional 3,000,000 shares. The initial registration
statement is incorporated by reference to this registration statement with the
exception of any changes as set forth below.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents filed by Eagle Broadband, Inc. ("Company" or
"Registrant") with the Securities and Exchange Commission are incorporated in
this Form S-8 by reference:
1. The Company's annual report for the fiscal year ended August 31, 2002;
2. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended ("Exchange Act") since the end of
the fiscal year covered by the document referred to in (1) above; and
3. The description of the Company common stock which is contained in the
registration statement or amendment to any registration statement filed under
Section 12 of the Exchange Act, including any amendment or report filed for the
purpose of updating the description.
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 to the Registration Statement that indicate that all
shares of common stock offered have been sold or that deregister all of the
shares then remaining unsold, shall be deemed to be incorporated by reference in
the Registration Statement and to be a part of it from the date of filing of the
documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interest of Named Experts and Counsel
Richard O. Weed, Managing Partner of Weed & Co. LLP, owns options to
purchase 150,000 shares of Company common stock at exercise prices ranging from
$.87 to $2.96. These options expire March 10, 2005.
Item 6. Indemnification of Directors and Officers
The Company's Articles of Incorporation provide that: "No director of the
Corporation shall be liable to the Corporation or its shareholders or members
for monetary damages for any act or omission in such director's capacity as a
director, except for (i) a breach of such director's duty of loyalty to the
Corporation or its shareholders or members; (ii) an act or omission not in good
faith that constitutes a breach of duty of the director to the Corporation, or
an act or omission that involves intentional misconduct or a knowing violation
of the law; (iii) a transaction from which a director received an improper
benefit, whether or not the benefit resulted from an action taken within the
scope of the director's office; or (iv) an act or omission for which the
liability of a director is expressly provided by an applicable statute."
The Company's Articles further provide that: "The Corporation shall
indemnify all current and former directors and officers of the Corporation to
the fullest extent of the applicable law, including, without limitation, Article
2.02-1 of the Texas Business Corporation Act."
The Texas Business Corporation Act generally provides that a director may
not be indemnified in respect of a proceeding (1) in which the person is found
liable on the basis that personal benefit was improperly received by him,
whether or not the benefit resulted from an action taken in the person's
official capacity; or (2) in which the person is found liable to the
corporation.
Section 10.2 of the Company's Bylaws provide that "The Company shall
indemnify every Indemnitee [which includes officers and directors] against all
judgments, penalties (including excise and similar taxes), fines, amounts paid
in settlement and reasonable expenses actually incurred by the Indemnitee in
connection with any Proceeding in which he was, is or is threatened to be named
defendant or respondent, or in which he was or is a witness without being named
a defendant or respondent, by reason, in whole or in part, of his serving or
having served, or having been nominated or designated to serve, in any of the
capacities referred to in Section 10.1, if it is determined in accordance with
Section 10.4 that the Indemnitee (a) conducted himself in good faith, (b)
reasonably believed, in the case of conduct in his Official Capacity, that his
conduct was in the Company's best interests and, in all other cases, that his
conduct was at least not opposed to the Company's best interests, and (c) in the
case of any criminal proceeding, had no reasonable cause to believe that his
conduct was unlawful; provided, however, that in the event that an Indemnitee is
found liable to the Company or is found liable on the basis that personal
benefit was improperly received by the Indemnitee the indemnification (i) is
limited to reasonable expenses actually incurred by the Indemnitee in connection
with the Proceeding and (ii) shall not be made in respect of any Proceeding in
which the Indemnitee shall have been found liable for willful or intentional
misconduct in the performance of his duty to the Company. Except as provided in
the immediately preceding proviso to the first sentence of this Section 10.2, no
indemnification shall be made under this Section 10.2 in respect of any
Proceeding in which such Indemnitee shall have been (x) found liable on the
basis that personal benefit was improperly received by him, whether or not the
benefit resulted from an action taken in the Indemnitee's Official Capacity, or
(y) found liable to the Company. The termination of any Proceeding by judgment,
order, settlement or conviction, or on a plea of nolo contendere or its
equivalent, is not of itself determinative that the Indemnitee did not meet the
requirements set forth in clauses (a), (b) or (c) in the first sentence of this
Section 10.2. An Indemnitee shall be deemed to have been found liable in respect
of any claim, issue or matter only after the Indemnitee shall have been so
adjudged by a court of competent jurisdiction after exhaustion of all appeals
therefrom. Reasonable expenses shall, include, without limitation, all court
costs and all fees and disbursements of attorneys for the Indemnitee. The
indemnification provided herein shall be applicable whether or not negligence or
gross negligence of the Indemnitee is alleged or proven." Section 10.4 referred
to above provides that: "Any indemnification under Section 10.2 (unless ordered
by a court of competent jurisdiction) shall be made by the Company only upon a
determination that indemnification of the Indemnitee is proper in the
circumstances because he has met the applicable standard of conduct. Such
determination shall be made (a) by the Board of Directors by a majority vote of
a quorum consisting of Directors who, at the time of such vote, are not named
defendants or respondents in the Proceeding; (b) if such a quorum cannot be
obtained, then by a majority vote of a committee of the Board of Directors, duly
designated to act in the matter by a majority vote of all Directors (in which
designated Directors who are named defendants or respondents in the Proceeding
may participate), such committee to consist solely of two (2) or more Directors
who, at the time of the committee vote, are not named defendants or respondents
in the Proceeding; (c) by special legal counsel selected by the Board of
Directors or a committee thereof by vote as set forth in clauses (a) or (b) of
this Section 10.4 or, if the requisite quorum of all of the Directors cannot be
obtained therefor and such committee cannot be established, by a majority vote
of all of the Directors (in which Directors who are named defendants or
respondents in the Proceeding may participate); or (d) by the shareholders in a
vote that excludes the shares held by Directors that are named defendants or
respondents in the Proceeding. Determination as to reasonableness of expenses
shall be made in the same manner as the determination that indemnification is
permissible, except that if the determination that indemnification is
permissible is made by special legal counsel, determination as to reasonableness
of expenses must be made in the manner specified in clause (c) of the preceding
sentence for the selection of special legal counsel. In the event a
determination is made under this Section 10.4 that the Indemnitee has met the
applicable standard of conduct as to some matters but not as to others, amounts
to be indemnified may be reasonably prorated."
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Identification of Exhibit
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4.1(1) Form of Common Stock Certificate 5.1(2) Opinion Regarding Legality
10.1(3) Eagle Broadband, Inc. 2003 Stock Incentive and Compensation Plan
10.2(2) Amendment to the Eagle Broadband, Inc. 2003 Stock Incentive and
Compensation Plan
23.1(2) Consent of Counsel (included in Exhibit 5.1)
23.2(2) Consent of McManus & Co., P.C., independent public accountants
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(1) Incorporated by reference to Exhibit 4.1 of Form SB-2 file no. 333-20011.
(2) Filed with this Form S-8.
(3) Previously filed on Form S-8 (File No. 333-103829) on March 14, 2003.
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.
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 and 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 (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
with or furnished to the Commission by the registrant
pursuant to Section 13 or 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.
(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 liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) 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.
(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 provisions described in Item 6 above, 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 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.
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
Post-Effective Amendment to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of League
City, State of Texas, on the 7th day of May 2003.
EAGLE BROADBAND, INC.
By: /s/ Dr. H. Dean Cubley
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Dr. H. Dean Cubley,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to the Registration Statement on Form S-8 has been
signed below by the following persons in the capacities and on the dates
indicated:
Signature Title Date
- --------- ----- ----
/s/H. Dean Cubley Chairman of the Board and May 7, 2003
H. Dean Cubley Chief Executive Officer
/s/Richard R. Royall Chief Financial Officer May 7, 2003
Richard R. Royall
/s/Christopher W. Futer Director May 7, 2003
Christopher W. Futer
/s/A. L. Clifford Director May 7, 2003
A. L. Clifford
/s/Glenn A. Goerke Director May 7, 2003
Glenn A. Goerke
EXHIBIT INDEX
Exhibit No. Identification of Exhibit
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4.1(1) Form of Common Stock Certificate 5.1(2) Opinion Regarding Legality
10.1(3) Eagle Broadband, Inc. 2003 Stock Incentive and Compensation Plan
10.2(2) Amendment to the Eagle Broadband, Inc., 2003 Stock Incentive and
Compensation Plan
23.1(2) Consent of Counsel (included in Exhibit 5.1)
23.2(2) Consent of McManus & Co., P.C., independent public accountants
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(1) Incorporated by reference to Exhibit 4.1 of Form SB-2 file no. 333-20011.
(2) Filed with this Form S-8.
(3) Previously filed on Form S-8 (File No. 333-103829) on March 14, 2003.
Exhibit 5.1 Opinion Regarding Legality
WEED & CO. LLP
4695 MACARTHUR COURT, SUITE 1430, NEWPORT BEACH, CALIFORNIA 92660-2164
TELEPHONE (949) 475-9086 FACSIMILE (949) 475-9087
May 7, 2003
Board of Directors
Eagle Broadband, Inc.
101 Courageous Drive
League City, TX 77573-3925
Re: Form S-8 Registration Statement; Opinion of Counsel
Dear Members of the Board:
We have represented Eagle Broadband, Inc., a Texas corporation (the "Company"),
in connection with the preparation of the Company's registration statement filed
with the Securities and Exchange Commission on Form S-8 ("Registration
Statement") in connection with the registration of 3,000,000 shares of the
Company's common stock, $.001 par value (the "Shares"), to be offered pursuant
to the Company's 2003 Stock Incentive and Compensation Plan, as amended (the
"Stock Plan").
In connection with this opinion, we have examined the Registration Statement,
the Stock Plan, and such other documents, records, certificates, memoranda and
other instruments as we deemed necessary for the basis of this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals and the conformity to originals of all documents submitted to us as
copies and the due execution and delivery of all documents where due execution
and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued in accordance with the Stock Plan, will be legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this Opinion as an Exhibit to the
Registration Statement and to the reference to us in Item 5 of Part II of the
Registration Statement.
Very truly yours,
/s/Weed & Co. LLP
Weed & Co. LLP
Exhibit 10.2 Amendment To The Eagle Broadband, Inc. 2003 Stock Incentive
and Compensation Plan
EAGLE BROADBAND, INC.
2003 STOCK INCENTIVE AND COMPENSATION PLAN
AMENDMENT
Article One, Section V, Paragraph A of the subject plan, as reads:
ARTICLE ONE
GENERAL PROVISIONS
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares repurchased by the
Corporation on the open market. The number of shares of Common Stock initially
reserved for issuance over the term of the Plan shall be 2,955,000 shares.
Is hereby amended to read as follows:
ARTICLE ONE
GENERAL PROVISIONS
V. STOCK SUBJECT TO THE PLAN
A. The stock issuable under the Plan shall be shares of authorized but unissued
or reacquired Common Stock, including shares repurchased by the Corporation on
the open market. The number of shares of Common Stock initially reserved for
issuance over the term of the Plan (2,955,000 shares) is increased by an
additional 3,000,000 shares, resulting in a total of 5,955,000 shares of Common
Stock reserved for issuance over the term of the Plan.
Attested to by the Secretary of Eagle Broadband, Inc., as
adopted by the Board of Directors, effective as of the 7th
day of May 2003 (the "Effective Date").
/S/ Christopher W. Futer
------------------------------
Christopher W. (Jim) Futer
Corporate Secretary
Exhibit 23.2 Consent of McManus & Co. P.C., independent public accountants
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the inclusion in this registration statement of Eagle Broadband,
Inc., on Form S-8 of our report dated December 16, 2002, relating to the
consolidated financial statements, which appear in the Annual Report on Form
10-K for the year ended August 31, 2002.
/S/McManus & Co., P.C.
McManus & Co., P.C.
Certified Public Accountants
Rockaway, New Jersey
May 7, 2003