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As filed with the Securities and Exchange Commission on August 11, 2000
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 its charter)
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Delaware 86-0828608
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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2851 West Kathleen Road, Phoenix, Arizona 85053-4053
(Address of Principal Executive Offices) (Zip Code)
HYPERCOM CORPORATION 2000 BROAD-BASED STOCK INCENTIVE PLAN
(Full title of the plan)
Jonathon E. Killmer
Executive Vice President, Chief Financial Officer and Chief Administrative
Officer
Hypercom Corporation
2851 West Kathleen Road
Phoenix, Arizona 85053-4053
(Name and address of agent for service)
(602) 504-5000
(Telephone number, including area code, of agent for service)
With copy to:
Steven D. Pidgeon
Snell & Wilmer L.L.P.
One Arizona Center
Phoenix, Arizona 85004
(602) 382-6000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE(1) PRICE(2) FEE
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Common Stock 5,000,000 $9.78 $48,900,000 $12,910
($0.001 par value per
share)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rules 457(c) and 457(h) of the Securities Act
of 1933 (the "Securities Act"), on the basis of the average of the high and
low prices of shares of common stock as of August 4, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I, Items 1 and
2, have been delivered to employees in accordance with Form S-8 and Securities
Act Rule 428.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
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 Transition Report on Form 10-K for the transition
period ended December 31, 1999;
(b) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000; and
(c) the description of the Company's capital stock contained in the
Registrant's Registration Statement on Form 8-A, dated October 22,
1997, filed with the Securities and Exchange Commission pursuant to
Section 12(g) 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
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provides that the Company shall to the fullest extent authorized 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 (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
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ITEM 8. EXHIBITS.
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EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
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3.1 Amended and Restated Certificate of Incorporated by
Incorporation of the Company reference to the
Company's
Registration
Statement on Form S-1
(file No. 333-35461)
3.2 Amended and Restated Bylaws of the Company Incorporated by
reference to the
Company's
Registration
Statement on Form S-1
(file No. 333-35461)
5 Opinion of Snell & Wilmer L.L.P. Filed Herewith
(including consent)
10.1 Hypercom Corporation 2000 Broad-Based Filed Herewith
Stock Incentive Plan
23.1 Consent of Ernst & Young LLP Filed Herewith
23.2 Consent of PricewaterhouseCoopers LLP Filed Herewith
23.3 Consent of Counsel See Exhibit No. 5
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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 June 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 a 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.
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 the
registration statement.
(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) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 ("Act") June 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 of 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 Phoenix, State of Arizona, on August 11, 2000.
HYPERCOM CORPORATION
By: /s/ Jonathon E. Killmer
-----------------------------------
Jonathon E. Killmer
Executive Vice President, Chief
Financial Officer and Chief
Administrative 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 dates indicated.
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SIGNATURE TITLE DATE
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(1) PRINCIPAL EXECUTIVE,
FINANCIAL AND ACCOUNTING OFFICERS
President, Chief
/s/ George Wallner Executive Officer and August 11, 2000
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George Wallner Director
/s/ Jonathon E. Killmer Executive Vice August 11, 2000
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Jonathon E. Killmer President, Chief
Financial Officer and
Chief Administrative
Officer
(2) DIRECTORS
/s/ Albert Irato Chairman of the Board August 11, 2000
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Albert Irato
Director August , 2000
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Peter J. Hart
/s/ William Keiper Director August 11, 2000
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William Keiper
/s/ Jock Patton Director August 11, 2000
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Jock Patton
/s/ Jane Evans Director August 11, 2000
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Jane Evans
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EXHIBIT INDEX
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EXHIBIT PAGE OR
NUMBER DESCRIPTION METHOD OF FILING
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3.1 Amended and Restated Certificate of Incorporated by
Incorporation of the Company reference to the
Company's
Registration
Statement on Form S-1
(file No. 333-35461)
3.2 Amended and Restated Bylaws of the Company Incorporated by
reference to the
Company's
Registration
Statement on Form S-1
(file No. 333-35461)
5 Opinion of Snell & Wilmer L.L.P. Filed Herewith
(including consent)
10.1 Hypercom Corporation 2000 Broad-Based Filed Herewith
Stock Incentive Plan
23.1 Consent of Ernst & Young LLP Filed Herewith
23.2 Consent of PricewaterhouseCoopers LLP Filed Herewith
23.3 Consent of Counsel See Exhibit No. 5
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