As filed with the Securities and Exchange Commission on March 31, 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. Non-Employee Director 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)
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<S> <C> <C> <C> <C>
Common Stock, par
value $.01 380,000 $ 10.0625 $3,823,750 $1,159
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</TABLE>
(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
March 27, 1997, as reported on the Nasdaq National Market.
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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. ("Old Orion"), 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 and Old Orion:
(a) Old Orion's annual report on Form 10-K dated March
29, 1996 filed pursuant to Sections 13(a) and 15(d)
of the Exchange Act, which contains audited financial
statements for Old Orion's fiscal year ended December
31, 1995;
(b) All other reports of Old Orion filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since
December 31, 1995, including quarterly reports on
Form 10-Q dated May 15, 1996, August 15, 1996 and
November 13, 1996 for the periods ended March 31,
1996, June 30, 1996 and September 30, 1996,
respectively;
(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 report on Form 8-K filed with the
Commission on February 14, 1997.
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
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so
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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
reason of their serving or having served in such capacity. The
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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
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
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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. Non-Employee
Director Stock Option Plan (filed as Exhibit
10.43 to the Registrant's Registration
Statement on Form S-4 (File No. 333-19795),
and incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered.
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.
(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.
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(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.
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 31st day of
March, 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.
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Signature Title Date
/s/ W. Neil Bauer Chief Executive March 31, 1997
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W. Neil Bauer, President Officer and Director
(Principal Executive Officer)
/s/ David J. Frear Chief Financial March 31, 1997
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David J. Frear, Vice President Officer and Treasurer
(Principal Financial Officer
and Principal Accounting Officer)
/s/ Gustave M. Hauser Director March 31, 1997
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Gustave M. Hauser, Chairman
7
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/s/ John V. Saeman Director March 31, 1997
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John V. Saeman
/s/ John G. Puente Director March 31, 1997
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John G. Puente
/s/ Richard J. Brekka Director March 31, 1997
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Richard J. Brekka
/s/ Warren B. French, Jr. Director March 31, 1997
Warren B. French, Jr.
/s/ Sidney S. Kahn Director March 31, 1997
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Sidney S. Kahn
/s/ W. Anthony Rice Director March 31, 1997
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W. Anthony Rice
/s/ Robert M. Van Degna Director March 31, 1997
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Robert M. Van Degna
/s/ Barry Horowitz Director March 31, 1997
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Barry Horowitz
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EXHIBIT INDEX
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Exhibit
Number Description Page
<S> <C> <C>
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. Non-Employee Director Stock Option Plan (filed as Exhibit *
10.43 to the Registrant's Registration Statement on Form S-4 (File No. 333-19795),
and incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being
registered.
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). *
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EXHIBIT 5.1
March 31, 1997
Board of Directors
Orion Network Systems, Inc.
2440 Research Boulevard, Suite 400
Rockville, Maryland 20850
Gentlemen:
This firm has acted as counsel to Orion Network Systems, Inc.
(the "Company"), a Delaware corporation, in connection with its registration,
pursuant to a registration statement on Form S-8 filed on or about the date
hereof (the "Registration Statement"), of 380,000 shares (the "Shares") of
common stock, par value $.01 per share, of the Company, issuable under the Orion
Network Systems, Inc. Non-Employee Director Stock Option Plan (the "Plan"). This
letter is furnished to you pursuant to the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in connection with such
registration.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plan, as certified by the Secretary of
the Company on the date hereof as then being complete,
accurate and in effect.
3. The Restated Certificate of Incorporation of the
Company, as amended (the "Charter"), as certified by
the Secretary of State of the State of Delaware on
January 29, 1997 and by the Secretary of the Company
on the date hereof as then being complete, accurate
and in effect.
4. The By-laws of the Company, as amended, as certified
by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect.
<PAGE>
Board of Directors
Orion Network Systems, Inc.
March 31, 1997
Page 2
5. Resolutions and consents of the Board of Directors of
the Company adopted on March 20, 1996 and March 12,
1997 as certified by the Secretary of the Company on
the date hereof as then being complete, accurate and
in effect relating to, among other things, approval
of the Plan.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of the
Company or its subsidiaries. In our examination of the aforesaid certificates,
records, and documents, we have assumed the genuineness of all signatures, the
legal capacity of natural persons, the authenticity, accuracy and completeness
of all documents submitted to us as originals, and the authenticity, accuracy
and completeness and conformity with the original documents of all documents
submitted to us as certified, telecopied, photostatic, or reproduced copies. We
have assumed the authenticity and accuracy of the foregoing certifications of
corporate officers, on which we are relying, and have made no independent
investigations thereof. This opinion is given in the context of the foregoing.
This opinion letter is based as to matters of law solely on
the General Corporation Law of the State of Delaware. We express no opinion
herein as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to, and limited by the foregoing, we are
of the opinion that the Shares, when issued and delivered in the manner and on
the terms contemplated in the Registration Statement and the Plan (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable by the Company.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this letter, and should not be quoted in
whole or in part or otherwise be referred to, nor be filed with or furnished to
any governmental agency or other person or entity, without the prior written
consent of this firm.
<PAGE>
Board of Directors
Orion Network Systems, Inc.
March 31, 1997
Page 3
We hereby consent to the filing of this opinion letter as
Exhibit 5.1 to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-xxxx) pertaining to the Orion Network Systems, Inc. Non-Employee
Director Stock Option Plan of our report dated February 9, 1996, with respect to
the consolidated financial statements of Orion Network Systems, Inc., a Delaware
corporation that is now known as Orion Oldco Services, Inc. ("Orion Oldco"),
included in Orion Oldco's Annual Report (Form 10-K) for the year ended December
31, 1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Washington, D.C.
March 24, 1997
