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As filed with the Securities and Exchange Commission on June 28, 2000
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________
COMMAND SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1135009
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
76 Batterson Park Road
Farmington, CT 06032
(860) 409-2000
(Address, including zip code, of registrant's principal executive offices)
2000 NON-EMPLOYEE DIRECTOR STOCK PURCHASE PLAN
(Full title of the plans)
____________
Edward G. Caputo
President and Chief Executive Officer
COMMAND SYSTEMS, INC.
76 Batterson Park Road
Farmington, CT 06032
(860) 409-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________
Copies of all communications, including all communications sent to the agent for
service, should be sent to:
PAUL JACOBS, ESQ.
WARREN J. NIMETZ, ESQ.
Fulbright & Jaworski L.L.P.
666 Fifth Avenue
New York, New York 10103
(212) 318-3000
Facsimile: (212) 752-5958
____________
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<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Amount to be Proposed maximum offering Proposed maximum aggregate Amount of
Title of Securities to be registered registered price per share offering price registration fee
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 150,000(1) $1.8125(2) $271,875 $72.00
====================================================================================================================================
</TABLE>
(1) Represents shares that may be purchased pursuant to the Command
Systems, Inc. 2000 Non-Employee Director Stock Purchase Plan.
(2) The price is estimated pursuant to Rule 457(h) of the Securities Act,
solely for the purpose of calculating the registration fee and is the
product resulting from multiplying 150,000, the number of shares
registered by this Registration Statement as to which shares may be
purchased by the Registrant's non-employee directors under the Command
Systems, Inc. 2000 Non-Employee Director Stock Purchase Plan, by
$1.8125, the average of the high and low prices of Command Systems,
Inc. Common Stock as reported on The Nasdaq National Market on June
23, 2000.
<PAGE>
PART I
The documents containing the information called for in Part I (Item 1 and
Item 2) of Form S-8 will be sent or given to individuals who are able to
purchase the shares registered hereby under the Command Systems, Inc. (the
"Company," the "Registrant" or the "Corporation") 2000 Non-Employee Director
Stock Purchase Plan, and are not being filed with or included in this Form S-8
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
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PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(1) The Company's quarterly report on Form 10-Q for the quarter ended
March 31, 2000, as filed with the Commission on May 11, 2000.
(2) The Company's annual report on Form 10-K for the year ended
December 31, 1999, as filed with the Commission on March 30,
2000.
(3) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A as filed with the Commission
on February 13, 1998.
In addition to the foregoing, all other documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment indicating that all of the securities offered hereunder have been sold
or deregistering all securities then 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. Any statement contained in a
document incorporated by reference in this Registration Statement 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 that is also 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.
The validity of the shares being offered hereby and certain other legal
matters in connection with the offering of such securities will be passed upon
for the Company by Fulbright & Jaworski L.L.P., securities counsel to the
Company.
Item 6. Indemnification of Directors and Officers.
Delaware Law
Section 145 of the Delaware General Corporation Law, as amended, provides
that a corporation has the power to indemnify a director, officer, employee or
agent of the corporation and certain other persons serving at the request of the
corporation in related capacities against
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amounts paid and expenses incurred in connection with an action or proceeding to
which he is or is threatened to be made a party by reason of such position, if
such person shall have acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
in any criminal proceeding, if such person had no reasonable cause to believe
his conduct was unlawful; provided that, in the case of actions brought by or in
the right of the corporation, no indemnification shall be made with respect to
any matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court determines
that such indemnification is proper under the circumstances.
Registrant's Amended and Restated Certificate of Incorporation
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation provides as follows:
NINTH: (i) To the fullest extent permitted by the Delaware General
Corporation Law as the same now exists or may hereafter be amended, the
Corporation shall indemnify, and advance expenses to, its directors, officers
and any person who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, or of a
partnership, joint venture, trust or other enterprise, if such person was or is
made a party to or is threatened to be made a party to or is otherwise involved
(including, without limitation, as a witness) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he 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, or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan;
provided, however, that except with respect to proceedings to enforce rights to
indemnification or as is otherwise required by law, the By-Laws of the
Corporation may provide that the Corporation shall not be required to indemnify,
and advance expenses to, any director, officer or other person in connection
with a proceeding (or part thereof) initiated by such director, officer or other
person, unless such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The Corporation, by action of its Board of
Directors, may provide indemnification or advance expenses to employees and
other agents of the Corporation or other persons only on such terms and
conditions and to the extent determined by the Board of Directors in its sole
and absolute discretion.
(ii) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article NINTH shall not be deemed exclusive of any
other rights to which a person seeking indemnification or advancement of
expenses may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(iii) The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, or of a
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under this Article NINTH.
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(iv) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article NINTH shall, unless otherwise specified when
authorized or ratified, continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such director or officer. The indemnification and rights to
advancement of expenses that may have been provided to an employee or agent of
the Corporation by action of the Board of Directors, pursuant to the last
sentence of Paragraph 1 of this Article NINTH, shall, unless otherwise specified
when authorized or ratified, continue as to a person who has ceased to be an
employee or agent of the Corporation and shall inure to the benefit of the
heirs, executors and administrators of such person, after the time such person
has ceased to be an employee or agent of the Corporation, only on such terms and
conditions and to the extent determined by the Board of Directors in its sole
discretion. No repeal or amendment of this Article NINTH shall adversely affect
any rights of any person pursuant to this Article NINTH which existed at the
time of such repeal or amendment with respect to acts or omissions occurring
prior to such repeal or amendment.
Article TENTH of the Registrant's Amended and Restated Certificate of
Incorporation provides as follows:
TENTH: No director shall be personally liable to the Corporation or
its stockholders for any monetary damages for breaches of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability; provided
that this provision shall not eliminate or limit the liability of a director, to
the extent that such liability is imposed by applicable law, (i) for any breach
of the director's duty of loyalty to the Corporation or its Stockholders; (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; (iii) under Section 174 or successor provisions
of the General Corporation Law of the State of Delaware; or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision shall not eliminate or limit the liability of a director for any act
or omission if such elimination or limitation is prohibited by the General
Corporation Law of the State of Delaware. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or alleged
liability of any director for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. If the Delaware General
Corporation Law is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then liability of a director of
the Corporation shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended.
Article VIII of the Registrant's By-Laws provides as follows:
Section 1. Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is otherwise involved
(including, without limitation, as a witness) in any action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or an 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, or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "Indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified
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and held harmless by the Corporation 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), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement), reasonably incurred
or suffered by such Indemnitee in connection therewith; provided, however, that,
except as provided in Section 3 of this Article with respect to proceedings to
enforce rights to indemnification or as otherwise required by law, the
Corporation shall not be required to indemnify or advance expenses to any such
Indemnitee in connection with a proceeding (or part thereof) initiated by such
Indemnitee unless such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
Section 2. Right to Advancement of Expenses. The right to
indemnification conferred in Section 1 of this Article shall include the right
to be paid by the Corporation the expenses (including attorney's 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 Corporation 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 no
further right to appeal that such Indemnitee is not entitled to be indemnified
for such expenses under this Section 2 or otherwise. The rights to
indemnification and to the advancement of expenses conferred in Sections 1 and 2
of this Article shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the Indemnitee's heirs, executors and administrators.
Any repeal or modification of any of the provisions of this Article shall not
adversely affect any right or protection of an Indemnitee existing at the time
of such repeal or modification.
Section 3. Right of Indemnitees to Bring Suit. If a claim under
Section 1 or 2 of this Article is not paid in full by the Corporation within
sixty (60) days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the Indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Indemnitee shall also be entitled to be paid the
expenses of prosecuting or defending such suit. In (i) any suit brought by the
Indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the Indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) any suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the Indemnitee has not met any applicable standard for indemnification set
forth in the Delaware General Corporation Law. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
Stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct
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set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its Stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the Indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article or otherwise shall be on the Corporation.
Section 4. Non-Exclusivity of Rights. The rights to indemnification
and to the advancement of expenses conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Certificate of Incorporation as amended
from time to time, these By-laws, any agreement, any vote of Stockholders or
disinterested directors or otherwise.
Section 5. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
Section 6. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
The Registrant has obtained insurance which insures the officers and
directors of the Registrant against certain losses and which insures the
Registrant against certain of its obligations to indemnify such officers and
directors.
The Company and the selling stockholders in the Company's initial public
offering have entered into an agreement (the "Indemnification Agreement") with
the Company's former securities counsel which served as the Company's counsel in
the initial public offering, which would hold the Company (including its
officers, directors and employees) harmless for damages which might result from
any claims as a consequence of the circumstances described under the caption
"Risk Factors-Sale of Unregistered Shares; Violation of the Securities Act of
1933; Shareholder Litigation." The Indemnification Agreement is filed as
Exhibit 10.16 to the Company's Amendment No. 4 to Form S-1 Registration
Statement and Post-Effective Amendment No. 5 to Form S-1 Registration Statement
as filed with the Commission on February 5, 1999.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
5 + Opinion of Fulbright & Jaworski L.L.P.
4.1 + 2000 Non-Employee Director Stock Purchase Plan.
23.1 + Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Fulbright & Jaworski L.L.P. (contained in their
opinion constituting Exhibit 5).
24 Power of Attorney (included in signature page).
------------
+ 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 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;
(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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as
amended, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934,
as amended, (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Securities 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.
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(h) 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 Securities Act of 1933
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 of the registrant 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 of 1933 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 Farmington, Connecticut on the 28th day of June,
2000.
COMMAND SYSTEMS, INC.
By: /s/ Edward G. Caputo
---------------------------------
Edward G. Caputo
President, Chief Executive Officer and
Chairman of the Board
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward G. Caputo and Stephen L. Willcox,
or either of them, as his true and lawful attorneys-in-fact and agents, with
full 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 any registration
statement relating to the offering hereunder pursuant to Rule 462 under the
Securities Act of 1933, as amended, 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 connection therewith, 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 either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
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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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Edward G. Caputo President, Chief Executive Officer and Chairman of June 28, 2000
------------------------------------ the Board (Principal executive officer)
Edward G. Caputo
/s/ Stephen L. Willcox Executive Vice President, Chief Financial Officer, June 28, 2000
------------------------------------ Secretary and Director (Principal financial
Stephen L. Willcox officer)
/s/ John T. Crawford Director June 28, 2000
------------------------------------
John T. Crawford
/s/ John J.C. Herndon Director June 28, 2000
------------------------------------
John J.C. Herndon
/s/ Theodore Ketterer Director June 28, 2000
------------------------------------
Theodore Ketterer
/s/ James M. Oates Director June 28, 2000
------------------------------------
James M. Oates
Director June 28, 2000
------------------------------------
Joseph D. Sargent
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INDEX TO EXHIBITS
Exhibit No. Description
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5 + Opinion of Fulbright & Jaworski L.L.P.
4.1 + 2000 Non-Employee Director Stock Purchase Plan
23.1 + Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Fulbright & Jaworski L.L.P. (contained in their
opinion constituting Exhibit 5)
24 Power of Attorney (included in signature page)
_____________
+ Filed Herewith.
