<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 14, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HYPERCOM CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 86-0828608
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2851 WEST KATHLEEN ROAD, PHOENIX, ARIZONA 85023
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
HYPERCOM CORPORATION 1997 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF PLAN)
ALBERT A. IRATO
HYPERCOM CORPORATION
2851 WEST KATHLEEN ROAD
PHOENIX, ARIZONA 85023
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(602) 504-5000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1)(3) PRICE PER SHARE(2) PRICE FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 625,000 $16.00 $10,000,000 $3,031
$0.001 par value
</TABLE>
(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement also covers an indeterminate number of
shares as may be required by reason of any stock dividend,
recapitalization, stock split, reorganization, merger, consolidation,
combination or exchange of shares or other similar change affecting the
stock.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee, based on the initial offering price of the
Registrant's Common Stock on November 13, 1997.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the plan described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to participants
Exhibit Index on Page 7
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in accordance with Form S-8 and Rule 428 under the Securities Act of 1933, as
amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Hypercom Corporation (the
"Company") with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934 and are hereby incorporated by reference into
this Registration Statement:
(a) the Company's prospectus, dated November 13, 1997, filed
pursuant to Rule 424(b) under the Securities Act of 1933, as
amended.
(b) the description of the Company's capital stock contained in
the Registrant's Registration Statement on Form 8-A, filed
with the Securities and Exchange Commission on October 22,
1997, pursuant to Section 12(b) of the Securities Act of
1934.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934, 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 this Registration Statement and to
be a part hereof from the date of filing 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 purposes of this Registration
Statement to the extent that a statement contained herein or in any 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation
provides that a director of the Company 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 for: (i) any breach of the director's
duty of loyalty to the Company or its stockholders; (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) liability for payments of dividends or stock purchases or redemptions
in violation of Section 174 of the Delaware General Corporation Law; or (iv) any
transaction from which the director derived an improper personal benefit. In
addition, the Company's Certificate of Incorporation provides that the Company
shall to the fullest extentauthorized by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than such law permitted the corporation
to provide prior to such amendment), indemnify and hold harmless any person who
was or is a party, or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "Indemnitee") against expenses, liabilities and losses
(including attorneys' fees, judgments, fines, excise taxes or penalties paid in
connection with the Employee Retirement Income Security Act of 1974, as amended,
and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith; provided, however, that except as otherwise
provided with respect to proceedings to enforce rights to indemnification, the
Company shall indemnify any such Indemnitee in connection with a proceeding (or
part thereof) initiated by such Indemnitee only if such proceeding or part
thereof was authorized by the board of directors of the Company.
The right to indemnification set forth above includes the right to be
paid by the Company the expenses
<PAGE> 3
(including attorneys' fees) incurred in defending any such proceeding in advance
of its final disposition; provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an Indemnitee
in his capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such Indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Company of an undertaking, by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is not further right to appeal that such Indemnitee is
not entitled to be indemnified for such expenses under this section or
otherwise. The rights to indemnification and to the advancement of expenses
conferred herewith are contract rights and continue as to an Indemnitee who has
ceased to be a director, officer, employee or agent and inures to the benefit of
the Indemnitee's heirs, executors and administrators.
The Delaware General Corporation Law provides that indemnification is
permissible only when the director, officer, employee, or agent acted in good
faith and in a manner 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 the conduct was unlawful. The
Delaware General Corporation Law also precludes indemnification in respect of
any claim, issue, or matter as to which an officer, director, employee, or agent
shall have been adjudged to be liable to the Company unless and only to the
extent that the court of Chancery or the court in which such action or suit was
brought shall determine that, despite such adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnify for such expenses which the Court of Chancery or such
other court shall deem proper.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index is located on page 7.
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 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% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective 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, Form
S-8 or Form F-3, 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 Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in
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the registration statement.
(2) That, for purposes 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) The undersigned registrant hereby undertakes 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) 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 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.
<PAGE> 5
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 Phoenix, State of Arizona, on this 14th day of
November, 1997.
HYPERCOM CORPORATION, a Delaware corporation
By: /s/ Albert A. Irato
-----------------------------------------
Albert A. Irato
Its: President and Chief Executive Officer
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 date indicated.
<TABLE>
<CAPTION>
Name and Signature Title Date
- ------------------ ----- ----
<S> <C> <C>
/s/ George Wallner Chairman of the Board of Directors November 14, 1997
- ------------------------------------- (Principal Executive Officer)
George Wallner
/s/ Albert A. Irato Vice Chairman of the Board of November 14, 1997
- ------------------------------------- Directors, President and Chief
Albert A. Irato Executive Officer
/s/ Paul Wallner Vice Chairman of the Board of November 14, 1997
- ------------------------------------- Directors
Paul Wallner
/s/ Jairo Gonzalez Vice Chairman of the Board of November 14, 1997
- ------------------------------------- Directors
Jairo Gonzalez
/s/ Thomas E. Linnen Chief Financial Officer and Director November 14, 1997
- ------------------------------------- (Principal Financial and Accounting
Thomas E. Linnen Officer)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page or Method of Filing
- -------------- ----------- ------------------------
<S> <C> <C>
4.1 Amended and Restated Incorporated by reference to the
Certificate of Incorporation of Company's Registration
the Company Statement on Form S-1 (File
No. 333-35461)
4.2 Amended and Restated Bylaws Incorporated by reference to the
of the Company Company's Registration
Statement on Form S-1 (File
No. 333-35461)
4.3 Hypercom Corporation 1997 Incorporated by reference to the
Employee Stock Purchase Plan Company's Registration
Statement on Form S-1 (File
No. 333-35461)
5 Opinion of Snell & Wilmer
L.L.P.
23.1 Consent of Coopers & Lybrand
L.L.P., independent accountants
23.2 Consent of Snell & Wilmer Included in Exhibit 5
L.L.P.
</TABLE>
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EXHIBIT 5
November 14, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: HYPERCOM CORPORATION 1997 EMPLOYEE STOCK PURCHASE PLAN
Ladies and Gentlemen:
We have acted as counsel to Hypercom Corporation, a Delaware
corporation (the "Company"), in connection with its Registration Statement on
Form S-8 (the "Registration Statement") filed under the Securities Act of 1933,
relating to the registration of 625,000 shares of its Common Stock, $.001 par
value (the "Shares"), issuable pursuant to the Company's 1997 Employee Stock
Purchase Plan (the "Plan").
In that connection, we are of the opinion that:
1. The Company has been duly organized and is validly existing as
a corporation under the laws of the State of Delaware.
2. The Shares, when issued and sold in accordance with the terms
of the Plan, will be validly issued, fully paid, and
nonassessable.
In rendering this opinion, we have reviewed and relied upon such
documents and records of the Company as we have deemed necessary and have
assumed the following:
(i) the genuineness of all signatures and the authenticity
of documents submitted to us as originals, and the conformity to originals of
all documents submitted to us as copies;
(ii) the accuracy, completeness, and genuineness of all
representations and certifications, with respect to factual matters, made to us
by officers of the Company and public officials; and
(iii) the accuracy and completeness of Company records.
The opinions expressed herein are limited solely to the laws of the
State of Delaware. We express no opinion on the laws of any other jurisdiction
or principles of conflicts of law and assume no responsibility for the
applicability or effect of any such laws or principles.
The opinions expressed herein are based upon the law and other matters
in effect on the date hereof, and we assume no obligation to revise or
supplement this opinion should such law be changed by legislative action,
judicial decision, or otherwise, or should any facts or other matters upon
which we have relied be changed.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SNELL & WILMER L.L.P.
7
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (File No. 333- ) of our report dated September 10, 1997, except for
Note 18 for which the date is October 1, 1997, on our audit of the consolidated
financial statements and financial statement schedule of Hypercom Corporation as
of June 30, 1997 and 1996 and for the three years in the period ended June 30,
1997, appearing in the registration statement on Form S-1 (File No. 333-35461)
of Hypercom Corporation filed with the Securities and Exchange Commission
pursuant to the Securities Act of 1933. We also consent to the references to our
firm under the captions "Experts" and "Selected Financial Data."
Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Phoenix, Arizona
November 14, 1997
