As filed with the Securities and Exchange
Commission on December 15, 1998
Registration No. 33-_______
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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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COMTECH TELECOMMUNICATIONS CORP.
(Exact name of registrant as specified in its charter)
Delaware 11-2139466
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
105 Baylis Road
Melville, New York, 11747
(Address of principal executive offices) (Zip code)
COMTECH TELECOMMUNICATIONS CORP.
1993 INCENTIVE STOCK OPTION PLAN, AS AMENDED
(Full title of the plan)
Mr. Fred Kornberg
Comtech Telecommunications Corp.
105 Baylis Road
Melville, New York, 11747
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS TO:
Edward W. Scheuermann, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036
212-969-3000
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1
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered(1) offering price aggregate offering Registration
per share(2) price(2) Fee
<S> <C> <C> <C> <C>
Common Stock, 450,000 shares $9.3125 $4,190,625 $ 1,236.23
par value $.10 per
share
=========================== ================== ===================== ==================== ==================
</TABLE>
(1) Represents the aggregate number of additional shares of the
common stock, par value $.10 of Comtech Telecommunications
Corp. issuable pursuant to the awards which may be granted
under the 1997 amendment to the Comtech Telecommunications
Corp. 1993 Incentive Stock Option Plan. Pursuant to Rule 416
promulgated under the Securities Act of 1933, this
Registration Statement also registers such additional shares
of common stock as may be offered or issued to prevent
dilution resulting from stock splits, stock dividends or
similar transactions.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(c) calculated on the
basis of the high and low sale prices of the Common Stock as
reported on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation
System on December 11, 1998.
2
<PAGE>
PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
The Section 10(a) prospectus for the Comtech Telecommunications Corp.
1993 Incentive Stock Option Plan, as Amended, is not being filed with the
Securities and Exchange Commission as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission by Comtech Telecommunications Corp., a Delaware corporation (the
"Corporation" or the "Registrant"), are incorporated herein by reference:
(1) The Corporation's Annual Report filed on Form 10-K
for the fiscal year ended July 31, 1998.
(2) The description of the Corporation's common stock,
$.10 par value (the "Common Stock") contained in the
Corporation's Registration Statement on Form 8-A
dated November 22, 1974.
(3) All documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14, and 15(d) of
the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective
amendment which indicated that all remaining
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 part thereof
from the date of filing such documents.
Any statement in a document incorporated or deemed to
be incorporated by reference herein shall be deemed
to be modified or superseded for the 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 statement so modified
or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby will be
passed upon for the Registrant by the law firm of Proskauer Rose LLP,
1585 Broadway, New York, New York 10036. Richard L. Goldberg, a member
of the Registrant's Board of Directors, is a partner in said firm.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to specific authority granted by Section 102 of the Delaware
General Corporation Law ("DGCL) of the State of Delaware, Article VII
of the Registrant's Restated Certificate of Incorporation, as amended,
contains the following provisions regarding indemnification of
directors and officers:
Section 1. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director, officer or
employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement,
actually and reasonably incurred by him in connection with
such action, suit or proceeding, if he 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, with respect to
any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
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Section 2. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer or
employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer or employee
of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he 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
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery of Delaware or the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem
proper.
Section 3. To the extent that a director, officer or employee
of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding
referred to in Sections 1 and 2 of this Article VII, or in
defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
Section 4. Any indemnification under Sections 1 and 2 of this
Article VII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer or
employee is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Sections 1
and 2. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or (2) if such quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs,
by independent legal counsel in a written opinion, or (3) by
the stockholders.
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Section 5. Expenses incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding, or
threat thereof, may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding as
authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director,
officer or employee to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified
by the Corporation as authorized in this Article VII.
Section 6. The indemnification provided by this Article VII
shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any
By-Law, agreement, vote of stockholders or disinterested
directors, statute, court decision, insurance policy or
otherwise, now or hereafter in effect, and shall continue as
to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 7. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer or
employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer or employee
of another corporation, 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 the
provisions of this Article VII or of the DGCL.
Section 8. For purposes of this Article VII, references to
"other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation"
shall include any service as a director, officer or employee
of the Corporation which imposes duties on, or involves
services by, such director, officer or employee with respect
to any employee benefit plan, its participants or
beneficiaries; and a person who acting in good faith and in a
manner he reasonably believes to be in the interest of the
participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this
Article VII.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of the Registrant. (Incorporated
herein by reference to Exhibit 3(a) of the Registrant's Annual
Report on Form 10-K for the fiscal year ended July 31, 1987.)
4.2 Certificate of Amendment to the Certificate of Incorporation
of the Registrant. (Incorporated herein by reference to
Exhibit 3(b) of the Registrant's Annual Report on Form 10-K
for the fiscal year ended July 31, 1991.)
4.3 Certificate of Amendment to the Certificate of Incorporation
of the Registrant (Incorporated herein by reference to Exhibit
3(d) to the Registrant's Annual Report on Form 10-K for the
fiscal year ended July 31, 1994.)
4.4 Certificate of Amendment to the Certificate of Incorporation
of the Registrant (Incorporated herein by reference to Exhibit
3(e) to the Registrant's Annual Report on Form 10-K for the
fiscal year ended July 31, 1998.)
4.5 By-Laws of the Registrant. (Incorporated by reference to
Exhibit 3(c) of the Registrant's Annual Report on Form 10-K
for the year ended July 31, 1998.)
4.6 The Registrant's Quarterly Report on Form 10Q for the quarter
ended October 31, 1998 filed on December 15, 1998.
5 Opinion of Proskauer Rose LLP
24.1 Consent of Proskauer Rose LLP (included in their opinion filed
as Exhibit 5).
24.2 Consent of KPMG Peat Marwick LLP.
25 Power of Attorney (included on the Signature Pages to this
Registration Statement)
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
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(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 value of securities offered (if just the 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 or 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;
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 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 the 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 that is incorporated by reference in the
registration statement shall be deemed to be a new registration
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<PAGE>
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 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 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, as amended,
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 Melville, County of Suffolk, State of New York,
on December 14, 1998.
COMTECH TELECOMMUNICATIONS CORP.
By /s/ Fred Kornberg
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Fred Kornberg
Chairman of the Board
and Chief Executive Officer
SIGNATURES CAPACITY DATE
/s/ GEORGE BUGLIARELLO Director December 14, 1998
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George Bugliarello
/s/ RICHARD L. GOLDBERG Director December 14, 1998
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Richard L. Goldberg
/s/ FRED KORNBERG Chairman of the Board, Chief December 14, 1998
- ----------------------- Executive Officer and Director
Fred Kornberg (Principal Executive Officer)
/s/ GERARD R. NOCITA Director December 14, 1998
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Gerard R. Nocita
/s/ JOHN B. Payne Director December 14, 1998
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John B. Payne III
/s/ SOL S. WEINER Director December 14, 1998
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Sol S. Weiner
/s/ GAIL SEGUI Secretary and Treasurer December 14, 1998
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Gail Segui
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EXHIBIT 5
December 15, 1998
The Board of Directors
Comtech Telecommunications Corp.
105 Baylis Road
Melville, New York 11747
Dear Sirs/Madams:
We are acting as counsel to Comtech Telecommunications Corp., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by the Company under
the Securities Act of 1933 and the rules and regulations thereunder, relating to
the registration of an additional 450,000 shares (the "Shares") of Common Stock,
par value $.10 per share, of the Company. The Shares are issuable by the Company
pursuant to the execution of stock options (the "Options") of the Company
pursuant to an amendment of the Company's 1993 Incentive Stock Option Plan (as
amended, the "Incentive Plan").
As such counsel, we have participated in the preparation of the
Registration Statement, and have reviewed the corporate proceedings in
connection with the adoption of the Plans and have also examined and relied upon
originals or copies, certified or otherwise authenticated to our satisfaction,
of all such corporate records, documents, agreements, and instruments relating
to the Company, and certificates of public officials and of representatives of
the Company, and have made such investigations of law, and have discussed with
representatives of the Company and such other persons such questions of fact, as
we have deemed proper and necessary as a basis for rendering this opinion.
Based upon, and subject to, the foregoing, we are of the opinion that
the Shares are duly authorized and, upon issuance pursuant to the exercise of
the Options in accordance with the terms of the Plan against payment of the
exercise price therefor as provided under the Plan will be, validly issued,
fully paid, and non-assessable.
<PAGE>
Exhibit 24.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Comtech Telecommunications Corp.
We consent to the incorporation by reference in the registration statement of
Comtech Telecommunications Corp. on Form S-8 of our report dated September 18,
1998, relating to the consolidated balance sheets of Comtech Telecommunications
Corp. and subsidiaries as of July 31, 1998 and 1997, and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the years in the three-year period ended July 31, 1998, and the related
schedule, which report appears in the annual report on Form 10-K of Comtech
Telecommunications Corp.
KPMG Peat Marwick
Melville, New York
December 15, 1998
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We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
Very truly yours,
PROSKAUER ROSE LLP
