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As filed with the Securities and Exchange Commission on May 1, 2000
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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AM COMMUNICATIONS, INC.
(Exact name of issuer as specified in its charter)
Delaware 22-1922958
(State of incorporation) (I.R.S. Employer Identification No.)
100 Commerce Drive, Quakertown, Pennsylvania 18951-2237
(Address and Zip Code of Principal Executive Offices)
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AM COMMUNICATIONS, INC. 1999 STOCK OPTION PLAN
(Full title of the plan)
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Harry J. Tankin, President
AM Communications, Inc.
100 Commerce Drive
Quakertown, Pennsylvania 18951-2237
(215) 538-8700
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
Securities offering aggregate Amount of
to be Amount to be price per offering Registration
Registered Registered(1) share(2) price Fee
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Common Stock,
Par value $.10 10,000,000 shares $0.969 $9,690,000 $2,558.16
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(1) Pursuant to Rule 416(a), this Registration Statement includes such
additional shares of Common Stock as may be issuable by virtue of the
anti-dilution provisions of the 1991 Incentive Stock Option Plan.
(2) Estimated pursuant to Rule 457 solely for the purpose of calculating the
registration fee. The price is based upon the average of the bid and asked
price of the Common Stock on April 26, 2000.
Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement becomes effective. These securities
are being registered pursuant to Rule 415.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.(1)
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Item 2. Registrant Information and Employee Plan Annual Information.(1)
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(1) Information required by Part I to be contained in the Section
10(a) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as
amended, and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents previously filed by AM Communications, Inc.
(the "Company") with the Securities and Exchange Commission (file no. 0-9856)
are incorporated by reference in this Registration Statement and made a part
hereof:
a. Annual Report on Form 10-KSB for the fiscal year ended
April 3, 1999;
b. Quarterly Report on Form 10-QSB for the fiscal quarters
ended July 3, 1999;
c. Quarterly Report on Form 10-QSB for the fiscal quarter
ended October 2, 1999;
d. Quarterly Report on Form 10-QSB for the fiscal quarter
ended January 1, 2000; and
e. The description of the Company's Common Stock contained in
the Company's definitive proxy materials (Schedule 14A)
filed with the Securities and Exchange Commission on
February 7, 2000.
All 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
(the "Exchange Act"), subsequent to the date hereof and prior to the filing of a
post-effective amendment to the Registration Statement relating to the Common
Stock offered hereby, which indicates that all such Common Stock has been sold
or which deregisters all such Common Stock then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part thereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be 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
in this document which also is or is deemed to be incorporated by reference in
this Registration Statement, modifies, supersedes, or replaces 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under Section 145 of the Delaware General Corporation Law, the Company
must indemnify each of its directors and officers against his expenses (that is,
reasonable costs, disbursements and counsel fees) in connection with any
proceeding involving such person by reason of his having been an officer,
director, employee or agent of the Company, or who is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the
extent he is successful on the merits. Moreover, under such statutory provision
the Company has the corporate power to indemnify its officers and directors
against expenses and (in the case of proceedings other than those by or in the
right of the Company) liabilities incurred in such a proceeding, provided (i)
the officer or director has acted in good faith and in a manner reasonably
believed to be in, or not opposed to, the best interests of the Company and (ii)
with respect to any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful. In the case of a proceeding by or in the right of the
Company, however, such indemnification is not permitted if the individual is
adjudged to be liable to the Company, unless a court determines that he is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper.
The determination of whether indemnification is proper under the
circumstances, unless made by a court, is determined by a majority of the
disinterested members of the Board of Directors or committee thereof, by
independent legal counsel if a quorum of the disinterested members of the Board
of Directors or committee thereof is not available or if the disinterested
members of the Board of Directors or a committee thereof so direct, or by the
stockholders.
The Company's Bylaws require the Company to indemnify each director and
officer if Section 145 of the Delaware General Corporation Law permits the
Company to do so.
The Company has obtained a directors' and officers' liability insurance
policy, which affords officers and directors insurance coverage for losses
arising from claims based on breaches of duty, negligence, error and other
wrongful acts.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed
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.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The following Exhibits are filed with this Registration Statement or,
as indicated, incorporated by reference:
Exhibit No. Description
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4 AM Communications, Inc. 1999 Stock Option Plan,
as amended to the date hereof
5 Opinion of Archer & Greiner, P.C. as to legality of
securities to be registered
23.1 Consent of Archer & Greiner,
P.C., included in their opinion as Exhibit 5
23.2 Consent of KPMG LLP
24 Power of Attorney (contained on signature page)
Item 9. Undertakings.
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(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;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement.
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if 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 Securities Exchange Act of 1934 that are
incorporated by reference in this 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 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
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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
[INTENTIONALLY LEFT BLANK]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned 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 Quakertown, and the Commonwealth of
Pennsylvania, on this 28th day of April, 2000.
AM COMMUNICATIONS, INC.
By: /s/ Harry J. Tankin
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Harry J. Tankin, President, and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Each person whose signature to this Registration Statement appears
below hereby appoints Harry J. Tankin as his attorney-in-fact to sign in his
behalf individually and in the capacity stated below and to file all amendments
and post-effective amendments to this Registration Statement, and any and all
instruments or documents filed as part of or in connection with this
Registration Statement or the amendments thereto, and such attorney-in-fact may
make such changes and additions to this Registration Statement as he may deem
necessary or appropriate.
Signature Title Date
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Chairman of the Board April ___, 2000
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Javad K. Hassan
/s/ Keith D. Schneck CFO & Director April 28, 2000
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Keith D. Schneck and accounting officer)
/s/ R. Barry Borden Director April 28, 2000
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R. Barry Borden
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Signature Title Date
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/s/ Alvin Hoffman Director April 28, 2000
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Alvin Hoffman
/s/ Lemuel A. Tarshis Director April 28, 2000
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Lemuel A. Tarshis
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EXHIBIT INDEX
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Exhibit No. Description
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4 AM Communications, Inc. 1999
Stock Option Plan
5 Opinion of Archer & Greiner, P.C.
as to legality of securities to be registered
23.2 Consent of KPMG LLP
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AM COMMUNICATIONS, INC.
1999 STOCK OPTION PLAN
1. Purpose
The purpose of the 1999 Stock Option Plan (referred to herein as the
"Plan") of AM Communications, Inc. (the "Company") is to provide a means by
which certain employees and directors of, and others providing services to or
having a relationship with, the Company and its subsidiaries (as such term is
defined in Section 424(f) of the Internal Revenue Code of 1986, as amended (the
"Code")) may be given an opportunity to purchase common stock of the Company
("Common Stock"). The Plan is intended to promote the interests of the Company
by encouraging stock ownership on the part of such individuals, by enabling the
Company and its subsidiaries to secure and retain the services of highly
qualified persons, and by providing such individuals with an additional
incentive to advance the success of the Company and its subsidiaries.
2. Administration
The Plan shall be administered by a Committee consisting of not less
than two directors (the "Committee") to be appointed from time to time by the
Board of Directors. Membership on the Committee shall in any event be limited to
those members of the Board who are "Non-Employee Directors" as defined in the
regulations promulgated by the Securities Exchange Commission pursuant to
Section 16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). The Committee shall have the power to select optionees, to establish the
number of shares and other terms applicable to each such option, to construe the
provisions of the Plan, and to adopt rules and regulations governing the
administration of the Plan. All power and authority granted hereunder to the
Committee may, at the discretion of the Board of Directors, be exercised by the
Board. The members of the Board of Directors or the Committee shall not be
liable for any action or determination made in good faith with respect to the
Plan or to any option granted pursuant thereto.
3. Eligibility
The persons who shall be eligible to participate in this Plan and
receive options hereunder shall be the Company's directors and such employees
and other individuals who provide services to or otherwise have a relationship
with the Company or its subsidiaries as the Committee shall from time to time
determine to be key individuals to the success of the Company.
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4. Allotment of Shares
A maximum of Ten Million (10,000,000) authorized but unissued shares of
the Common Stock, $0.10 par value, of the Company will be allotted to the Plan.
Shares that by reason of the expiration of an option or otherwise are no longer
subject to purchase pursuant to an option granted under the Plan may be
re-optioned under the Plan.
5. Effective Date and Term of Plan
The effective date of the Plan is the date on which it is approved by
the affirmative vote of shareholders owning a majority of the Common Stock of
the Company. The Plan shall terminate on the tenth anniversary of its effective
date, but the Board of Directors may terminate the Plan at any time prior
thereto. Termination of the Plan shall not alter or impair, without the consent
of the optionee, any of the rights or obligations of any option theretofore
granted under the Plan.
6. Terms and Conditions
A. All Options
Stock options granted pursuant to this Plan shall be evidenced by
agreements in such form as the Committee shall from time to time approve.
Nothing in this Plan or any option granted hereunder shall govern the employment
rights and duties between the optionee and the Company or subsidiary. Neither
this Plan, nor any grant or exercise pursuant thereto, shall constitute an
employment agreement among such parties. The following shall also apply to all
options granted under the Plan:
(i) Option Price
The option price per share for each stock option shall be
determined by the Committee, consistent with the provisions of
this Plan.
(ii) Time of Exercise of Option
Except as otherwise set forth herein, the Committee shall
establish the option period and time or times within the
option period when the stock option may be exercised in whole
or in such parts as may be specified from time to time by the
Committee. No option shall be exercisable until after the
expiration of six months from the date of grant. With respect
to an optionee whose employment with the Company is about to
terminate (for whatever reason), the Committee may in its
discretion accelerate the time or times when any particular
stock option held by said optionee may be so exercised so that
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such time or times are earlier than those originally provided
in said option. In all cases exercise of a stock option
granted to an employee shall be subject to the provisions of
Section 6A(v).
(iii) Payment and Manner of Exercise
The entire option price shall be paid at the time the
option is exercised. To the extent that the right to purchase
shares has accrued hereunder, options may be exercised from
time to time by written notice to the Company stating the full
number of shares with respect to which the option is being
exercised and the time of delivery thereof, in accordance with
such administrative procedures as may from time to time be
specified by the Committee. Such notice of exercise shall be
accompanied by full payment for the shares by: (1) certified
or official bank check or the equivalent thereof acceptable to
Company; (2) by tendering to the Company shares of Common
Stock, or requesting the Company to accept shares to be
acquired by exercising the option, having an aggregate fair
market value, determined by the Company at the date of
payment, equal to the option price; or (3) any combination of
the foregoing. Upon exercise, the Company shall deliver to the
optionee (or other person entitled to exercise the option), at
the principal office of the Company, or such other place as
shall be mutually agreed upon, a certificate or certificates
for such shares; provided, however, that the time of delivery
may be postponed by the Company for such periods as may be
required for it with reasonable diligence to comply with any
requirements of law; and provided further that in the event
the Common Stock issuable upon exercise is not registered
under the Securities Act of 1933 (the "Act"), then the Company
may require that the registered owner deliver an investment
representation in form acceptable to the Company and its
counsel and the Company will place a legend on the certificate
for such Common Stock restricting the transfer of same. There
shall be no obligation or duty for the Company to register
under the Act at any time the Common Stock issuable upon
exercise of the options. If the optionee (or other person
entitled to exercise the option) fails to accept delivery, the
optionee's payment shall be returned and the right to exercise
the option with respect to such undelivered shares shall be
terminated.
(iv) Non-Transferability of Option
An option by its terms shall not be transferable by the
optionee otherwise than by will or by the laws of descent and
distribution.
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(v) Rights after Termination of Employment
In the event of termination of employment due to any cause
other than death or disability, rights to exercise the stock
option shall terminate three months following cessation of
employment. In the event of termination of employment due to
disability (within the meaning of Section 22(e)(3) of the
Code) or death, such optionee or executor, administrator or
devisee of an optionee, shall have the right to exercise such
option (to the extent otherwise exercisable) at any time
within one year after cessation of employment by reason of
such disability or death.
(vi) Effect of Termination of Directorship
An option granted to a director shall not be affected
solely due to the fact that the holder ceases, for whatever
reason, to serve on the Board of Directors.
(vii) Adjustment in Event of Recapitalization of the Company
In the event of a reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger,
consolidation, rights offering, or any other change in the
corporate structure or shares of the Company, the Board of
Directors shall make such adjustment as it may deem equitably
required, in the number and kind of shares authorized by and
for the Plan, in the number and kind of shares covered by the
options granted, and in the option price.
(viii) Change in Control
Notwithstanding any other provision of this Plan, if there
is a Change in Control of the Company, all then outstanding
stock options shall immediately become exercisable. For
purposes of this Section (viii), a "Change in Control" shall
be deemed to have occurred in the event of a change in control
of the Company which would be required to be reported in
response to Item 1 of Form 8-K promulgated under the Exchange
Act; provided that a Change in Control shall in no event be
deemed to have occurred for the purposes hereof solely due to
the grant of voting rights (including by the entering into of
a voting trust), or the termination or modification of such
grant of voting rights, by any individual who, at the time of
adoption of this Plan, owns in excess of 30% of the Common
Stock of the Company.
B. Non-Qualified Stock Options
The Committee may, in its discretion, grant options under the
Plan which, in whole or in part, do not qualify as incentive stock options under
Section 422 of the Code ("Non- Qualifying Options"). The terms and conditions of
the Non-Qualifying Options shall be governed by Section 6A above.
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C. Incentive Stock Options
The Committee may, in its discretion, grant options under the
Plan which qualify, in whole or in part, as incentive stock options under
Section 422 of the Code. In addition to the terms and conditions set forth in
Section 6A above, the following terms and conditions shall govern any incentive
stock option issued under the Plan:
(i) Maximum Fair Market Value of Incentive Stock Options
No optionee may have incentive stock options which become
exercisable for the first time in any calendar year (under all
incentive stock option plans of the Company and its subsidiary
corporations) with an aggregate fair market value (determined
as of the time such option is granted) in excess of One
Hundred Thousand Dollars ($100,000).
(ii) Option Price
The option price per share for each incentive stock option
shall be 100% of the fair market value of the Common Stock on
the date the option is granted; except, in the case of the
grant to an optionee who owns Common Stock of the Company
possessing more than 10% of the total combined voting power of
all classes of stock of the Company or its subsidiaries, the
option price of such option shall be at least 110% of the fair
market value of the Common Stock on the date the option is
granted. The fair market value shall be determined as
prescribed by the Code and regulations promulgated thereunder.
(iii) Period of Option
Each incentive option shall expire ten years from the date
it is granted or at the end of such shorter period as may be
designated by the Committee on the date of grant; except, in
the case of the grant of an incentive stock option to an
optionee who owns Common Stock of the Company possessing more
than 10% of the total combined voting power of all classes of
stock of the Company or its subsidiaries, such option shall
not be exercisable after the expiration of five years from the
date it is granted.
(iv) Eligible Participants
Incentive stock options may be issued only to employees of
the Company or its parent or subsidiary corporation or
corporations.
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7. Amendment of Plan
The Board, within its discretion, shall have authority to amend the
Plan and the terms of any option issued hereunder; provided, that no such action
of the Board of Directors, without the approval of the Shareholders of the
Company, shall:
(a) materially increase the benefits accruing to optionees
under the Plan;
(b) increase the number of securities which may be issued
under the Plan; or
(c) materially modify the requirements as to eligibility for
participation under the Plan.
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EXHIBIT NO. 5
ARCHER & GREINER
A Professional Corporation
COUNSELORS AT LAW
ONE CENTENNIAL SQUARE
P.O. Box 3000
HADDONFIELD, NEW JERSEY 08033-0968
April 28, 2000
AM Communications, Inc.
100 Commerce Drive
Quakertown, Pennsylvania 18951-2237
Dear Sirs:
We have examined the corporate records and proceedings of AM
Communications, Inc., a Delaware corporation, with respect to the legal
sufficiency of all corporate proceedings of such corporation taken in connection
with the creation, form and validity and full payment and non- assessability
when issued of the 10,000,000 shares of common stock, par value $0.10 per share,
covered by the Registration Statement on Form S-8, dated April 28, 2000, in
connection with which Registration Statement this opinion is rendered.
Based upon such examination, we are of the opinion that, when the
Registration Statement shall have been declared effective by order of the
Securities and Exchange Commission, and the shares shall have been issued and
sold upon the terms and conditions set forth in the Registration Statement, such
shares will be validly authorized and legally issued, fully paid, and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
/s/ Archer & Greiner
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ARCHER & GREINER
A Professional Corporation
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EXHIBIT NO. 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
AM Communications, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of AM Communications, Inc. of our report dated June 30, 1999, relating to
the financial statements which appear on Form 10-K for the year ended April 3,
1999.
/s/ KPMG LLP
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Allentown, Pennsylvania
April 14, 2000
