As filed with the Securities and Exchange Commission on September 30, 2003
Registration No. 333-__________
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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, President
League City, Texas 77573-3925 101 Courageous Drive
(281) 538-6000 League City, Texas 77573-3925
(Address, including zip code, and (281) 538-6000
telephone number, including (Name, address, including zip code,
area code, of registrant's and telephone number, including
principal executive offices) area code, of agent for service)
EAGLE BROADBAND, INC. 2003 STOCK INCENTIVE AND COMPENSATION PLAN
(Full Title of the Plans)
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copy to:
Thomas C. Pritchard, Esq.
Three Riverway, Suite 1800
Houston, Texas 77056
Phone (713) 209-2950
Fax (713) 659-2430
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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
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Common Stock, par value
$0.001 per share............. 2,945,300 $0.45 $ 1,325,385 $ 107
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TOTAL $ 107
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(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 September 30, 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 ("Plan"), and filed a
Registration Statement on Form S-8 on May 8, 2003, increasing the number of
shares available under the Plan by registering an additional 3,000,000 shares.
Eagle's board of directors subsequently approved an amendment to the Plan and
registration statement on Form S-8 to increase the amount of shares authorized
under the Plan to 8,900,300 shares and register an additional 2,945,300 shares.
The initial registration statement and amended registration statement are
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 end 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, including
the Company's Form 10-Q for the fiscal quarter ended November 30, 2002, its Form
10-Q for the fiscal quarter ended February 28, 2003, and its Form 10-Q for the
fiscal quarter ended May 31, 2003 as filed with the Commission; 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
Not Applicable.
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(4) Opinion Regarding Legality
10.1(2) Eagle Broadband, Inc., 2003 Stock Incentive and
Compensation Plan
10.2(3) Amendment to 2003 Stock Incentive and Compensation Plan
10.3(4) Amendment No. 2 to the 2003 Stock Incentive and
Compensation Plan
23.1(4) Consent of Counsel (included in Exhibit 5.1)
23.2(4) 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) Previously filed as Exhibit 10.1 to Form S-8 filed on March 13, 2003 (file
no. 333-103829).
(3) Previously filed as Exhibit 10.2 to Form S-8 file on May 8, 2003 (file no.
333-103829).
(4) Filed herewith.
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 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 30th day of
September 2003.
EAGLE BROADBAND, INC.
By: /s/H. Dean Cubley
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Dr. H. Dean Cubley, Chairman and Chief Executive
Officer
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Pursuant to the requirements of the Securities Act of 1933, 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/H. Dean Cubley Chairman of the Board and CEO September 30, 2003
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H. Dean Cubley
/s/Richard R. Royall Chief Financial Officer September 30, 2003
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Richard R. Royall
/s/Christopher W. Futer Director September 30, 2003
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Christopher W. Futer
/s/A. L. Clifford Director September 30, 2003
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A. L. Clifford
/a/Glenn A. Goerke Director September 30, 2003
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Glenn A. Goerke
/s/C. J. Reinhartsen Director September 30, 2003
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C. J. Reinhartsen
/s/Lorne E. Persons Director September 30, 2003
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Lorne E. Persons