As filed with the Securities and Exchange Commission
on July 1, 1994
Registration No. 33-______
_________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
__________
GENERAL DATACOMM INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-0853856
(State or other jurisdiction of (IRS Employer
the corporation or organization) Identification No.)
1579 Straits Turnpike, Middlebury, Connecticut 06762-1299
(203) 574-1118
(Address, including zip code, and telephone number
including area code, of registrant's principal
executive offices)
HOWARD S. MODLIN, Weisman, Celler, Spett & Modlin,
445 Park Avenue, New York, New York 10022 (212) 371-5400
(Name, address and telephone number, including area code,
of agent for service).
Approximate date of commencement of proposed sale to public:
From time to time after this Registration Statement becomes
effective.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [ X ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Offering Registration
Be Registered Registered Per Share Price Fee
<S> <C> <C> <C> <C>
Common Stock, par 1,250,000 $16.1875 (1) $20,234,375 $6,977.37
value $.10 per share
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of
calculating the registration fee on the basis of the average
high/low price on June 30, 1994, on the New York Stock Exchange,
Inc.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE> 3
GENERAL DATACOMM INDUSTRIES, INC.
Cross Reference Sheet
Showing Location in the Prospectus of Information Required by
Part I of Form S-3: Items 1 through 13
Item in Form S-3 Prospectus Caption
1. Forepart of the Facing Page of Registration
Registration Statement; Front Cover Page
Statement and Outside to Prospectus
Front Cover Page of
Prospectus
2. Inside Front and Inside Front Cover Page and
Outside Back Cover Outside Back Cover Page of
Pages of Prospectus Prospectus
3. Summary Information, General Information;
Risk Factors and Ratio Not Applicable
of Earnings to Fixed
Charges
4. Use of Proceeds Prospectus Cover and Plan
of Distribution
5. Determination of Prospectus Cover and Plan
Offering Price of Distribution
6. Dilution Not Applicable
7. Selling Security Prospectus Cover;
Holders Selling Stockholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities Description of Capital Stock;
to be Registered Plan of Distribution
10. Interests of Named Not Applicable
Experts and Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Certain
Information by Reference Documents by Reference
13. Disclosure of Commission Not Applicable
Position on
Indemnification for
Securities Act
Liabilities
(i)
<PAGE> 4
SUBJECT TO COMPLETION, DATED JULY 1, 1994
PRELIMINARY PROSPECTUS
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO
BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
1,250,000 Shares
GENERAL DATACOMM INDUSTRIES, INC.
COMMON STOCK
This prospectus relates to the offering of 1,250,000 shares of
Common Stock ("Shares") of General DataComm Industries, Inc.
(the "Corporation") which are held by the Selling Stockholders
named herein (see "Selling Stockholders").
The Corporation will not receive any proceeds from the sale of
Shares by the Selling Stockholders. All expenses incurred in
connection with this offering are being borne by the
Corporation, other than any commissions or discounts paid or
allowed by the Selling Stockholders to underwriters, dealers,
brokers or agents.
The Selling Stockholders have not advised the Corporation of
any specific plans for the distribution of the Shares, but it
is anticipated that the Shares may be sold from time to time in
transactions (which may include block transactions) on the New
York Stock Exchange, Inc. at the market prices then prevailing.
Sales of the Shares may also be made through negotiated
transactions or otherwise. The Selling Stockholders and the
brokers and dealers through which the sales of the Shares may be
made may be deemed to be "underwriters" within the meaning set
forth in the Securities Act of 1933, as amended, and their
commissions and discounts and other compensation may be regarded
as underwriters' compensation. See "Plan of Distribution."
The Common Stock is traded on the New York Stock Exchange, Inc.
under the symbol "GDC." The last reported sale price of the
Common Stock as reported on the New York Stock Exchange, Inc. on
June 30, 1994 was $16.13 per share.
<PAGE> 5
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is July 1, 1994.
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<PAGE> 6
No person has been authorized by the Corporation to give any
information or to make any representation not contained in this
Prospectus in connection with the offer made hereby, and, if
given or made, such information or representation must not be
relied upon as having been authorized by the Corporation.
Neither the delivery of this Prospectus nor any sales made
hereunder shall under any circumstances create any implication
that there has been no change in the affairs of the Corporation
since the date hereof.
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference
facilities maintained by the Commission in Washington, D.C., at
Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549; in
New York City at Suite 1300, Seven World Trade Center, New York,
New York 10048; and in Chicago at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material can
also be obtained from the Public Reference Section of the
Securities and Exchange Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Corporation's
Common Stock is listed and traded on The New York Stock
Exchange, Inc. and the above material is also available for
inspection at such Exchange, 20 Broad Street, New York, New York
10005.
A Registration Statement under the Securities Act of 1933, as
amended (the "Securities Act"), has been filed with the
Commission with respect to the shares of Common Stock offered
hereby. This Prospectus omits certain information contained in
the Registration Statement, including exhibits thereto. For
further information with respect to the Corporation and the
Common Stock, reference is made to the Registration Statement
and exhibits thereto, copies of which may be inspected at the
offices of the Commission at 450 Fifth Street, N.W., Washington,
D.C., 20549 or obtained from the Commission at the same address
at prescribed rates.
INCORPORATION BY REFERENCE
The following documents, filed with the Securities and Exchange
Commission, as stated above (Commission File No. 1-8086), are
hereby incorporated by reference in this Prospectus:
1. The Corporation's annual report on Form 10-K for the year
ended September 30, 1993.
2. The Corporation's proxy statement dated December 6, 1993,
with respect to its annual meeting of shareholders held on
February 3, 1994.
3. The Corporation's quarterly reports on Form 10-Q for the
quarters ended December 31, 1993, and March 31, 1994.
4. The Corporation's current report on Form 8-K dated
June 14, 1994.
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<PAGE> 7
All documents filed by the Corporation after the date of this
Prospectus pursuant to Sections 13, 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment to the registration statement of which
this Prospectus constitutes a part, which indicates that all
securities then remaining unsold shall be deregistered, shall be
deemed to be incorporated by reference in this Prospectus and to
be a part hereof from the date of filing of such documents.
GENERAL INFORMATION
The Corporation, the executive offices of which are located at
1579 Straits Turnpike, Middlebury, Connecticut, 06762-1299, is
the issuer of the Common Stock, $.10 par value covered by the
Registration Statement and being offered by this Prospectus.
The Corporation's telephone number is (203) 574-1118.
SELLING STOCKHOLDERS
The fifteen (15) Selling Stockholders listed below whose
accounts are managed by Ardsley Partners, 646 Steamboat Road,
Greenwich, CT, acquired the aggregate
of 1,250,000 Shares on May 27, 1994, in a private placement
pursuant to exemption from registration under Section 4(2) of
the Securities Act of 1933, as amended, at a negotiated price of
$12.375 per share. The Corporation was represented by Salomon
Brothers Inc as placement agent. The Corporation agreed to
register the Shares under the Securities Act and to indemnify
and hold the Selling Stockholders harmless against certain
liabilities under the Securities Act that could arise in
connection with the sale by the Selling Stockholders of the
Shares. The Selling Stockholders have likewise agreed to
indemnify the Corporation against certain liabilities under the
Securities Act. The Corporation has agreed to pay all
reasonable fees and expenses incident to the filing of this
Registration Statement.
No. of Shares Offered
Name Currently Owned Hereby
Ardsley Partners 105,000 105,000
- -Account of
Odyssey Partners
Ardsley Partners 37,000 37,000
- -Account of
Zev Wolfson
Ardsley Partners 37,500 37,500
- -Account of
Wolfson Equities
Ardsley Global 15,000 15,000
Fund, Ltd.
-4-
<PAGE> 8
No. of Shares Offered
Name Currently Owned Hereby
Ardsley Partners 5,500 5,500
- -Account of
Gretzky/Waks
Ardsley Partners 225,000 225,000
Fund I, L.P.
Ardsley Partners 225,000 225,000
Fund II, L.P.
Ardsley Ofshore 150,000 150,000
Fund, Ltd.
Ardsley Partners 150,000 150,000
- -Haussmann
Overseas Account
Ardsley Partners 50,000 50,000
- -Institute for Advanced
Study Account
Ardsley Partners 50,000 50,000
- -Gam Can, Ltd. Account
Ardsley Partners 50,000 50,000
- -GAM Equity No. 1 Inc.
Account
Ardsley Partners 20,000 20,000
- -Weyerhauser Co.
Account
Ardsley Partners 5,000 5,000
- -EDN Account
- -Philip and Colleen
Hempleman 125,000 125,000
-5-
<PAGE> 9
PLAN OF DISTRIBUTION
The Corporation will receive no proceeds from this offering.
The Shares offered hereby may be sold by the Selling
Stockholders from time to time in transactions on the New York
Stock Exchange, Inc. in negotiated transactions, or a
combination of such methods of sale, at fixed prices which may
be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated
prices. The Selling Stockholders may effect such transactions
by selling the Shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling
Stockholders and/or the purchasers of the Shares for which such
broker-dealers may act as agents or to whom they sell as
principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
In order to comply with the securities laws of certain states,
if applicable, the Shares will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In
addition, in certain states the Shares may not be sold unless
they have been registered or qualified for sale in the
applicable state or as exemption from the registration or
qualification requirement is available and is complied with.
The Selling Stockholders and any broker-dealers or agents that
participate with the Selling Stockholders in the distribution of
the Shares may be deemed to be "underwriters" within the meaning
of the Securities Act, and any commissions received by them and
any profit on the resale of the Shares purchased by them may be
deemed to be underwriting commissions or discounts under the
Securities Act.
Under applicable rules and regulations under the Exchange Act,
any person engaged in the distribution of the Shares may not
simultaneously engage in market making activities with respect
to the Common Stock of the Corporation for a period of two (2)
business days prior to the commencement of such distribution.
In addition and without limiting the foregoing, each Selling
Stockholder will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder,
including, without limitation, Rules 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of shares
of the Corporation's Common Stock by the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
Common Stock
The shares of Common Stock are entitled to one (1) vote per
share on all matters submitted to stockholders. They are also
entitled to vote separately as a class (as are the shares of
Class B Stock described below) on all matters requiring an
amendment to the Corporation's Certificate of Incorporation, as
well as on mergers, consolidations and certain other significant
transactions for which stockholder approval is required under
Delaware law. Holders of the Common Stock do not have
preemptive rights or cumulative voting rights.
-6-
<PAGE> 10
Dividends on the Common Stock will be paid if, and when,
declared. The Common Stock is entitled to cash dividends which
are 11.11% higher per share than the cash dividends which may be
paid on the Class B Stock, but otherwise the Common Stock and
the Class B Stock rank equally. The Corporation has never paid
cash dividends and dividends are not permitted by the
Corporation's principal loan agreement. Stock dividends on and
stock splits of Common Stock will only be payable or made in
shares of Common Stock.
The Common Stock is entitled upon liquidation to receive the
entire net assets of the Corporation remaining after payment of
all debts and other claims of creditors and after the holders of
each series of Preferred Stock, if any, have been paid the
preferred liquidating distribution on their shares, if any, as
fixed by the Board of Directors of the Corporation. The Common
Stock is not convertible into shares of any other equity
security of the Corporation.
The Common Stock is freely transferable.
Class B Stock
The shares of Class B Stock are entitled to one (1) vote per
share on all matters submitted to stockholders, except that they
are entitled to ten (10) votes per share in the election of
directors under certain circumstances. They are also entitled
to vote separately as a class (as are the shares of Common
Stock) on all matters requiring an amendment to the
Corporation's Certificate of Incorporation, as well as on
mergers, consolidations and certain other significant
transactions for which stockholder approval is required under
Delaware law. Holders of the Class B Stock do not have
preemptive rights or cumulative voting rights.
Dividends on the Class B Stock will be paid only as and when
dividends on the Common Stock are declared and paid. The Common
Stock is entitled to cash dividends which are 11.11% higher per
share than the cash dividends which may be paid on the Class B
Stock, but otherwise the Common Stock and the Class B Stock rank
equally. Stock dividends on and stock splits of Class B Stock
will only be payable or made in shares of Class B Stock.
In the event of liquidation or insolvency, each share of Class
B Stock will be entitled, through conversion into Common Stock,
to share ratably with the Common Stock in the assets remaining
after payment of all debts and other claims of creditors,
subject to the rights of any Preferred Stock which may be issued
in the future.
Holders of Class B Stock may elect at any time to convert any
or all of such shares back into shares of the Common Stock on a
share-for-share basis. In the event that the number of
outstanding shares of Class B Stock falls below 5% of the
aggregate number of issued and outstanding shares of Common
Stock and Class B Stock, or the Board of Directors and a
majority of the outstanding shares of Class B stock approve the
conversion of all of the Class B
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<PAGE> 11
Stock into Common Stock, then immediately upon the occurrence of
either event, the shares of the Class B Stock will automatically
be converted into shares of Common Stock. In the event of such
conversion, certificates formerly representing outstanding
shares of Class B Stock will thereafter be deemed to represent
a like number of shares of Common Stock.
The Class B Stock is not transferable except to certain family
members and related entities.
Special Voting Requirements
The Corporation's Certificate of Incorporation, as presently in
effect, contains a provision requiring a two-thirds vote on
mergers, consolidations or a sale of substantially all of the
Corporation's assets. It also contains a "fair price" provision
requiring all stockholders to receive equal treatment in the
event of a takeover which may be coercive; such provision may
not be amended except by a four-fifths vote of the stockholders
and may be considered to have the effect of discouraging tender
offers, takeover attempts, acquisitions or business combinations
involving the Corporation; and such provision also requires that
business combinations involving the Corporation and certain
"Acquiring Persons" (i.e., a person or entity which directly or
indirectly owns or controls at least 5% of the voting stock of
the Corporation) be approved by the holders of four-fifths of
the Corporation's outstanding shares entitled to vote (other
than shares held by an Acquiring Person with which or by or on
whose behalf a business combination is proposed) unless such
business combination either:
(1) has been authorized by the Board of Directors prior to the
time that the Acquiring Person involved in such business
combination became an Acquiring Person, or
(2) will result in the receipt by the other stockholders of a
specified minimum amount and form of payment for their shares.
Preferred Stock
The Preferred Stock may be issued in one or more series from
time to time by action of the Board of Directors. The shares of
any series of Preferred Stock may be convertible into Common
Stock, may have priority over the Common Stock and Class B Stock
in the payment of dividends and as to the distribution of assets
in the event of liquidation, dissolution or winding up of the
Corporation and may have preferential or other voting rights, in
each case, to the extent, if any, determined by the Board of
Directors at the time it creates the series of Preferred Stock.
There are no shares of Preferred Stock outstanding.
-8-
<PAGE> 12
LEGAL MATTERS
The legality of the shares offered by this Prospectus has been
passed upon by Messrs. Weisman, Celler, Spett, & Modlin, 445
Park Avenue, New York, New York 10022. As of June 30, 1994,
members of the firm of Weisman, Celler, Spett, & Modlin
beneficially owned 6,750 shares of the Class B Stock of the
Corporation. Howard S. Modlin, a member of such firm, is
Secretary and a director of the Corporation.
EXPERTS
The consolidated financial statements and financial statement
schedules of the Corporation as of September 30, 1993 and 1992
and for the years ended September 30, 1993, 1992 and 1991,
incorporated by reference in this Prospectus, have been
incorporated herein in reliance upon the report of Coopers &
Lybrand, independent accountants, given on the authority of that
firm as experts in accounting and auditing.
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<PAGE> 13
FORM S-3, PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses (other than
underwriting discounts and commissions)1 which other than the
SEC registration fee are estimates, payable by the registrant in
connection with the sale and distribution of the shares
registered hereby:
SEC registration fee ..................... $ 7,085.13 (actually paid)
Placement agent fees and expenses......... 657,421.88
Legal and accounting fees and expenses.... 42,914.87
Total $ 707,421.88
1 - The Selling Stockholders will pay any sales commissions or
underwriting discounts incurred in connection with the sale of
Shares registered hereunder.
Item 15. Indemnification of Directors and Officers
Reference is made to Article Tenth of the registrant's Restated
Certificate of Incorporation filed as Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1988, which is incorporated by reference for
information concerning indemnification of directors and
officers. Section 145 of the General Corporation Law of
Delaware permits or requires indemnification of officers and
directors in the event that certain statutory standards of
conduct are met. However, reference is made to Item 9(d) with
respect to indemnification for liabilities arising under the
Securities Act.
Under an insurance policy with The Chubb Group of Companies,
the directors and certain officers of the undersigned registrant
and its subsidiaries are indemnified against certain losses
arising from certain claims which may be made against such
persons, by reason of their being such directors or directors.
Item 16. Exhibits
3.1 Restated Certificate of Incorporation of the Corporation
(Incorporated by reference from Form 10-Q for quarter ended
June 30, 1988, Exhibit 3.1. Amendments thereto are filed as
Exhibit 3.1 to Form 10-Q for quarter ended March 31, 1990.)
3.2 Amended and Restated By-laws of the Corporation
(Incorporated by reference from Exhibit 3.2 to Form 10-K for
year ended September 30, 1987.)
5. Opinion of Weisman, Celler, Spett & Modlin
II-1
<PAGE> 14
10.1 Registration Rights Agreement.
24. Consents
(a) Coopers & Lybrand
(b) Weisman, Celler, Spett & Modlin (contained in Exhibit 5)
Item 17. 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 this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in this Registration Statement; and (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 clauses (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those clauses 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, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered herein 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 the
purpose of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to
Section 13 or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the 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.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the undersigned registrant pursuant to
II-2
<PAGE> 15
the foregoing provisions, or otherwise, the undersigned
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 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 undersigned 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 undersigned
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 and will be governed by the
final adjudication of such issue.
II-3
<PAGE> 16
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-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York, on the lst day of July,
1994.
GENERAL DATACOMM INDUSTRIES, INC.
Charles P. Johnson, Chairman of the Board
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.
Signature Title Date
___________________ Chairman of Board July 1, 1994
Charles P. Johnson and Chief Executive
Officer
____________________ Vice President-Finance July 1, 1994
William S. Lawrence and Chief Financial
Officer
____________________ Corporate Controller July 1, 1994
William G. Henry and Principal Accounting
Officer
____________________ Director July 1, 1994
Howard S. Modlin
____________________ Director July 1, 1994
Frederick R. Cronin
____________________ Director July __, 1994
Lee M. Paschall
____________________ Director July __, 1994
John L. Segall
11-4
<PAGE> 17
Exhibit 5
July 1, 1994
Board of Directors
General DataComm Industries, Inc.
1579 Straits Turnpike
Middlebury, CT 06762-1200
Re: Registration Statement on Form S-3
Gentlemen:
Reference is made to the registration statement (the
"Registration Statement"), which General DataComm Industries,
Inc. (the "Corporation") is filing on this date with the
Securities and Exchange Commission under the Securities Act of
1933, as amended, for the registration of 1,250,000 shares of
the Common Stock of the Corporation.
Pursuant to your request, we have examined those of the
Corporation's records deemed relevant by us for the purpose of
furnishing you with our opinion concerning the legality and
validity of issue of the shares of Common Stock of the
Corporation covered by the Registration Statement.
Based upon the foregoing, we are of the opinion that:
1. The Corporation is duly incorporated and validly existing
as a corporation under the laws of the State of Delaware.
2. All of the shares of Common Stock proposed to be registered
by the Registration Statement on behalf of the Selling Stockholders
are validly issued, fully paid and non-assessable by the Corporation
with no personal liability attaching to the ownership thereof.
We herewith give our consent to the use of this opinion as an
exhibit to the herein referred to Registration Statement and to
the use of our name therein.
Very truly yours,
WEISMAN, CELLER, SPETT & MODLIN
<PAGE> 18
Exhibit 10.1
Page 1 of 9
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is
entered into as of the Closing Date (as defined herein) by and
among General DataComm Industries, Inc., a Delaware corporation,
and the persons whose signatures appear on the execution pages
of this Agreement.
This Agreement is made pursuant to the Common Stock Purchase
Agreement between the Company and each of the Purchasers listed
therein (the "Purchase Agreement"). In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement by the Company is a
condition to closing under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement.
As used in this Agreement, the following terms shall have the
following meanings:
Closing Date: The date assigned thereto in the Purchase
Agreement.
Common Stock: The common stock, $.10 par value of the Company.
Company: General DataComm Industries, Inc., a Delaware
corporation.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Expiration Date: Three (3) years from the issuance of the
Shares.
Losses: See Section 6(a) hereof.
Placement Agent: Salomon Brothers Inc
Prospectus: The prospectus included in any Registration
Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such
Registration Statement and all other amendments and supplements
to the prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated
by reference in such prospectus.
Purchase Agreement: The Common Stock Purchase Agreement by and
among the Company and the Purchasers thereunder pursuant to
which the Shares were issued.
<PAGE> 19
Exhibit 10.1
Page 2 of 9
Registration Expenses: All reasonable expenses incurred by the
Company in complying with Section 3 hereof, including all
registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, and blue sky fees and
expenses in such states listed in Schedule 1 attached hereto.
Registrable Securities: All Shares which are Restricted
Securities, and any Common Stock issued or issuable in respect
to the Shares pursuant to any stock split, stock dividend,
recapitalization, or similar event.
Registration Statement: Any registration statement of the
Company which covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all
material incorporated by reference or deemed to be incorporated
by reference in such registration statement.
Restricted Securities: The Shares, and at all times subsequent
thereto, until, in the case of any such security, it is no
longer required to bear the legend set forth on such security
pursuant to the terms of the security, the Purchase Agreement
and applicable law.
Rule 144: Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC (excluding Rule 144A).
Shares: The Common Stock issued to the Purchasers pursuant to
the Purchase Agreement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC thereunder.
Shelf Registration: See Section 3(a) hereof.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Securities Subject to this Agreement
The securities entitled to the benefits of this Agreement are
the Registrable Securities.
3. Shelf Registration
(a) Shelf Registration. The Company shall not later than the
30th day after the Closing Date (the "Filing Date"), prepare and
file with the SEC a Registration Statement for an offering to
<PAGE> 20
Exhibit 10.1
Page 3 of 9
be made on a continuous basis pursuant to Rule 415 (or any
appropriate similar rule that may be adopted by the SEC) under the
Securities Act covering the Registrable Securities (the "Shelf
Registration"). The Shelf Registration shall be on a Form S-3 or another
appropriate form (unless the holders of the Registrable Securities offered
thereby reasonably request a specific form) permitting
registration of such Registrable Securities for resale by such
holders in a public sale or distribution of the Registrable
Securities other than through an underwritten offering.
(b) Effectiveness. The Company shall use reasonable efforts to
cause the Shelf Registration to become effective under the
Securities Act as soon as practicable following the Filing Date.
Subject to the requirements of the Securities Act including,
without limitation, requirements relating to updating
prospectuses through post-effective amendments or otherwise, the
Company shall use reasonable efforts to keep the Shelf
Registration continuously effective until the Expiration Date,
provided, that in the event of a Suspension Period, as set forth
in Section 5(d) hereof, the Company shall extend the period of
effectiveness of such Shelf Registration by the number of days
of each such Suspension Period.
4. Holdback Agreements.
Restrictions on Public Sale by Holders of Registrable
Securities. Each holder of Registrable Securities whose
Registrable Securities are covered by a Registration Statement
filed pursuant to Section 3 hereof agrees, if requested by the
managing underwriters in a separate underwritten offering on
behalf of the Company (to the extent timely notified in writing
by the Company or the managing underwriters), not to effect any
public sale or distribution of securities of the Company of any
class included in such Registration Statement, including a sale
pursuant to Rule 144 (except as part of such underwritten
offering), during the 10-day period prior to, and the 90-day
period beginning on, the effective date of any such underwritten
offering.
The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable
statute or regulation from entering into any such agreement.
5. Expenses and Procedures
(a) Expenses of Registration. All Registration Expenses shall
be borne by the Company. Each holder shall bear all selling
commissions, sales concessions and similar expenses applicable
to the sale of securities attributable to the Registrable
Securities sold by such holder.
(b) Registration Procedures. In the case of the registration,
qualification or compliance effected by the Company pursuant to
Section 3, the Company will keep the holders advised as to the
initiation of registration, qualification and compliance and as
to the completion thereof. At its expense, the Company will
furnish such number of Prospectuses and other documents incident
thereto as the holders from time to time may reasonable request.
(d) Information. The Company may require each seller of
Registrable Securities as to
<PAGE> 21
Exhibit 10.1
Page 4 of 9
which the registration is being effected to furnish such
information regarding the distribution of such Registrable
Securities as the Company may from time to time reasonably
request and the Company may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to
furnish such information after receiving such request.
(d) Delay or Suspension. Notwithstanding anything herein to
the contrary, the Company may, at any time, delay the filing of
the Shelf Registration for a period of up to 60 days following
the Filing Date or suspend the effectiveness of the Registration
Statement for a period of up to 90 days in the aggregate in any
calendar year, as appropriate (a "Suspension Period"), by
giving notice to each holder of Registrable Securities to be
included in the Registration Statement, if the Company shall
have determined that the Company may be required to disclose any
material corporate development which disclosure may have a
material effect on the Company. Each holder of Registrable
Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of a
Suspension Period, such holder shall forthwith discontinue
disposition of such Registrable Securities covered by the
Registration Statement or Prospectus until such holder (i) is
advised in writing by the Company that the use of the applicable
Prospectus may be resumed, (ii) has received copies of a
supplemental or amended prospectus, if applicable, and (iii) has
received copies of any additional or supplemental filings which
are incorporated or deemed to be incorporated by reference in
such Prospectus. The Company shall prepare, file and furnish to
each holder of Registrable Securities immediately upon the
expiration of any Suspension Period, appropriate supplements or
amendments, if applicable, to the Prospectus and appropriate
documents, if applicable, incorporated by reference in the
Registration Statement.
6. Indemnification
(a) Indemnification by Company. The Company shall, without
limitation as to time, indemnify and hold harmless, to the full
extent permitted by law, each holder of Registrable Securities,
its officers, directors, agents and employees, each person who
controls such holder (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act), and the
officers, directors, agents or employees of any such controlling
person, from and against all losses, claims, damages,
liabilities, costs (including, without limitation, all
reasonable attorneys' fees) and expenses (collectively,
"Losses"), as incurred, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or
preliminary prospectus, or arising out of or based upon any
omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein in
light of the circumstances under which they were made (in the
case of any Prospectus) not misleading, except insofar as the
same are based solely upon information furnished to the Company
by such holder for use therein; provided, however, that the
Company shall not be liable in any such case to the extent that
any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in any preliminary prospectus or Prospectus if (i)
such holder failed to send or deliver a copy of the Prospectus
or Prospectus supplement with or prior to the delivery of
written confirmation of the sale of
<PAGE> 22
Exhibit 10.1
Page 5 of 9
Registrable Securities and (ii) the Prospectus or Prospectus
supplement would have corrected such untrue statement or
omission. If requested, the Company shall also indemnify
selling brokers and similar securities industry professionals
participating in the distribution, their officers, directors,
agents and employees and each person who controls such persons
(within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the holders of
Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a holder of
Registrable Securities is participating, such holder of
Registrable Securities shall furnish to the Company in writing
such information as the Company may reasonably request for use
in connection with any Registration Statement or Prospectus.
Such holder hereby agrees to indemnify and hold harmless, to the
full extent permitted by law, the Company, and its officers,
directors, agents and employees, each person who controls the
Company (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors,
agents or employees of any such controlling person, from and
against all Losses arising out of or based upon any untrue
statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus, or arising out
of or based upon any omission of a material fact required to be
stated therein or necessary to make the statements therein in
light of the circumstances under which they were made (in the
case of any Prospectus) not misleading, to the extent, but only
to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such
holder to the Company for use in such Registration Statement,
Prospectus or preliminary prospectus. The Company shall be
entitled to receive indemnities from accountants, selling
brokers and similar securities industry professionals
participating in the distribution to the same extent as provided
above with respect to information so furnished by such persons
specifically for inclusion in any Registration Statement,
Prospectus or preliminary prospectus, provided, that the failure
of the Company to obtain any such indemnity shall not relieve
the Company of any of its obligations hereunder.
(c) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation or inquiry)
shall be brought or any claim shall be asserted against any
person entitled to indemnity hereunder (an "indemnified party"),
such indemnified party shall promptly notify the party from
which such indemnity is sought (the "indemnifying party") in
writing, and the indemnifying party shall assume the defense
thereof, including the employment of counsel reasonably
satisfactory to the indemnified party and payment of all fees
and expenses incurred in connection with the defense thereof.
Any such indemnified party shall have the right to employ
separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be the expense of such indemnified party
unless (a) the indemnifying party has agreed to pay such fees
and expenses, (b) the indemnifying party shall have failed
promptly to assume the defense of such action, claim or
proceeding and to employ counsel reasonably satisfactory to the
indemnified party in any such action, claim or proceeding, or
(c) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party
shall have been advised by counsel that there may
<PAGE> 23
Exhibit 10.1
Page 6 of 9
be one or more legal defenses available to it which are
different from or additional to those available to the
indemnifying party (in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to
assume the defense of such action, claim or proceeding on behalf
of such indemnified party, it being understood, however, that
the indemnifying party shall not, in connection with any one
such action, claim or proceeding or separate but substantially
similar or related actions, claims or proceedings in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified
parties, unless in the opinion of counsel for such indemnified
party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to
such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels. No
indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an
unconditional term thereof the release of such indemnified party
from all liability in respect to such claim or litigation
without the written consent (which consent will not be
unreasonably withheld) of the indemnified party. No indemnified
party shall consent to entry of any judgment or settlement
without the written consent (which consent will not be
unreasonably withheld) of the indemnifying party from which
indemnity or contribution is sought.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section
6(a) or 6(b) hereof (other than by reason of exceptions provided
in those Sections) in respect to any Losses, then each
applicable indemnifying party in lieu of indemnifying such
indemnified party shall contribute to the amount paid or payable
by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified party in connection with
the actions, statements or omissions with resulted in such
Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and the
indemnified party shall be determined by reference to, among
other things, whether any action in question, including any
untrue statement or alleged untrue statement of a material fact
or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such
indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of
any Losses shall be deemed to include, subject to the
limitations set forth in Section 6(c), any legal or other fees
or expenses reasonably incurred by such party in connection with
any action, suit, claim, investigation or proceeding.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
<PAGE> 24
Exhibit 10.1
Page 7 of 9
7. Rule 144
The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, to the extent
required from time to time, to enable such holder to sell
Registrable Securities without registration under the Securities
Act within the limitations of the exemptions provided by Rule
144. Upon the request of any holder of Registrable Securities,
the Company shall deliver to such holder a written statement as
to whether the Company has complied with such information and
requirements.
8. Miscellaneous
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given unless the Company
obtains the written consent of holders of at least 66-2/3% of
the then outstanding Registrable Securities affected by such
amendment, modification or supplement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter which relates exclusively to the
rights of holders of Registrable Securities whose securities are
being sold pursuant to a Registration Statement and which does
not directly or indirectly affect the rights of holders of
Registrable Securities whose securities are not being sold
pursuant to such Registration Statement may be given by holders
of a majority of the Registrable Securities being sold by such
holders.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by
hand-delivery, certified first-class mail, next day air courier,
or telecopy: (i) If to a holder of Registrable Securities, at
the most current address given by such holder to the Company in
accordance with the provisions of this Section 9(b), which
address initially is, with respect to each Purchaser, the
address set forth on the signature page attached hereto; and
(ii) If to the Company initially at the address set forth on the
first page of the Purchase Agreement, attention: Vice
President, Finance, and thereafter at such other address, notice
of which is given in accordance with the provision of this
Section 9(b), with a copy to Weisman, Celler, Spett & Modlin,
445 Park Avenue, New York, NY 10022, Attention: Howard S.
Modlin, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally
delivered; two business days after being deposited in the mail,
postage prepaid, if mailed; one business day after being sent by
next day air courier, and when receipt acknowledged, if
telecopied.
(c) Transfer of Registration Rights. The right granted to the
holders pursuant to this Agreement to cause the Company to
register securities may be assigned in connection with the
transfer, assignment or sale of any Registrable Security to the
extent such securities and rights
<PAGE> 25
Exhibit 10.1
Page 8 of 9
may be transferred, assigned, or sold pursuant to applicable
laws and to the agreements to which the particular holder is a
party; provided, however, that no transfer or assignment of such
rights shall be effective or valid unless the purchaser,
transferee or assignee, after giving effect to the transfer,
assignment or sale of the Registrable Securities, owns or has
the right to acquire at least 50,000 shares of Common Stock.
(d) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York
without regard to principles of conflict of laws.
(g) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto
shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid,
void or unenforceable.
(h) Entire Agreement. This Agreement is intended by the
parties to be a final expression of their agreement and a
complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties nor undertakings, other than those set forth or
referred to herein with respect to the registration rights
granted by the Company with respect to the Shares sold pursuant
to the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect
to such subject matters.
(i) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the successful party
shall be entitled to recover reasonable attorneys' fees in
addition to its costs and expenses and any other available
remedy.
<PAGE> 26
Exhibit 10.1
Page 9 of 9
IN WITNESS WHEREOF, the parties have executed this agreement as
of the date first written above.
GENERAL DATACOMM INDUSTRIES, INC.
By: ____________________________
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
PURCHASER
--------------------------------
By: ____________________________
Name: __________________________
Title: _________________________
Address: _______________________
_______________________
<PAGE> 27
Exhibit 24
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of General DataComm Industries, Inc. and Subsidiaries
on Form S-3 (File No.______) of our reports dated October 21, 1993,
except as to the information presented in Notes 2 and 5 of the
"Notes to Consolidated Financial Statements," for which the dates
are November 24, 1993 and November 30, 1993, respectively, on our
audits of the consolidated financial statements and financial
statement schedules of General DataComm Industries, Inc. and
Subsidiaries as of September 30, 1993 and 1992 and for the years
ended September 30, 1993, 1992 and 1991, which reports are
incorporated by reference or included in the 1993 Annual Report
on Form 10-K. We also consent to the reference of our firm
under the caption "Experts."
COOPERS & LYBRAND
Stamford, Connecticut
June 21, 1994
