Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RADYNE COMSTREAM INC.
(Exact name of registrant as specified in its charter)
New York
(State or other jurisdiction of incorporation or organization)
11-2569467
(I.R.S. Employer Identification No.)
3138 E. Elwood Street
Phoenix, Arizona 85034
(Address of Principal Executive offices)
1999 Employee Stock Purchase Plan
(Full title of the plan)
John B. Wade, III, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10177
(212) 415-9200
(Name, Address and Telephone Number of Agent for Service)
<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered Share Price Fee
- ------------------------------------------------------------------------------
Common Stock,
Par value
$0.002
Per Share 1,000,000 shs. $2.39 $2,390,000 $664.42
- ------------------------------------------------------------------------------
Total 1,000,000 shs. $2,390,000 $664.42
- ------------------------------------------------------------------------------
(1) Calculated pursuant to Rule 457(h)(1) on the basis of the last reported sale
price of Radyne ComStream Inc.'s common stock as of November 1, 1999.
-----------------
This registration statement is effective immediately upon filing as provided in
Rule 462 under the Securities Act of 1933 (the "Securities Act").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
This registration statement incorporates by reference the documents
described below that Radyne ComStream Inc. (the "Company") previously filed with
the Securities and Exchange Commission ("SEC"). These documents, which may be
obtained from the SEC, contain important information about the Company and its
finances.
(a) The Company's annual report on Form 10-K/A for the fiscal year ended
December 31, 1998;
(b) The Company's quarterly report on Form 10-Q/A for the quarter ended
March 31, 1999;
(c) The Company's quarterly report on Form 10-Q/A for the six month period
ended June 30, 1999;
(d) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
since December 31, 1998, including but not limited to, the Form 8-K/A
filed on May 6, 1999; and
(e) The description of the Company's common stock $.002 par value, as
contained in its registration statement on Form 8-A, filed on March 8,
1984.
In addition, all documents the Company subsequently files with the SEC,
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
filing a post-effective amendment to this registration statement which indicates
that the securities offered by this registration statement have been sold or
which deregisters all securities remaining unsold, shall also be considered to
be incorporated by reference in this registration statement from the date the
documents are filed.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company carries directors and officers liability insurance in the
amount of $2,000,000. In addition, New York Business Corporation Law, Article 7,
enables a corporation in its original certificate of incorporation, or an
amendment approved by stockholders, to eliminate or limit personal liability of
members of its Board of Directors for violations of a director's fiduciary duty
of care. However, the elimination or limitation does not apply where there has
been bad faith, intentional misconduct or a knowing violation of law, the
payment of a dividend or approval of a stock repurchase which is illegal, any
other violation of Section 719 of the New York Business Corporation Law, or a
financial profit or other advantage to which the director was not legally
entitled. The Company's Certificate of Incorporation includes the following
language:
"SEVENTH: A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for damages for any breach of duty as a
director; provided that, except as hereinafter provided, this Article
SEVENTH shall neither eliminate nor limit liability: (a) if a judgment or
final adjudication adverse to the director establishes that (i) the
director's acts or omissions were in bad faith or involved intentional
misconduct or a knowing violation of law, (ii) the director personally
gained in fact a financial profit or other advantage to which the director
was not legally entitled, or (iii) the director's acts violated Section 719
of the New York Business Corporation Law; or (b) for any act or omission
prior to the effectiveness of this Article SEVENTH. If the Corporation
hereafter may by law be permitted to further eliminate or limit the
personal liability of directors, then pursuant hereto the liability of a
director of the Corporation shall, at such time, automatically be further
eliminated or limited to the fullest extent permitted by law. Any repeal of
or modification to the provisions of this Article SEVENTH shall not
adversely affect any right or protection of a director of the Corporation
existing pursuant to this Article SEVENTH immediately prior to such repeal
or modification.
EIGHTH: The Corporation may, to the fullest extent permitted by Section 721
through 726 of the Business Corporation Law of New York, indemnify any and
all directors and officers whom it shall have power to indemnify under the
said sections from and against any and all of the expenses, liabilities or
other matters referred to in or covered by such section of the Business
Corporation Law, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which the persons so indemnified
may be entitled under any By-Law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his/her official
capacity and as to action in another capacity by holding such office, and
shall continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators
of such a person."
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE>
Item 8. Exhibits.
See the Exhibit Index on page II-7 of this registration statement.
Item 9. Undertakings.
(1) The Company undertakes:
(a) 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, unless the information required to be included in the
post-effective amendment to the registration statement is contained in
a periodic report required to be filed by the Company or the plan
pursuant to Section 13 or 15(d) of the Exchange Act that is
incorporated in this registration statement by reference;
(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 to the registration statement) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement, unless the
information required to be included in the post-effective amendment is
contained in a periodic report filed by the Company or the plan
pursuant to Section 13 or 15(d) of the Exchange Act that is
incorporated in this registration statement by reference;
(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 the information in the
registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each post-effective amendment shall be deemed to be a new
registration statement related to the securities offered herein, and the
offering of those securities at the time shall be deemed to be the initial
bona fide offering thereof.
(c) 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.
(d) That, for the purposes of determining any liability under the
Securities Act, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of those securities at that time shall be deemed to be the initial
bona fide offering.
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<PAGE>
(2) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Company pursuant to the provisions described in Item 6
above, or otherwise, the Company has been advised that in the opinion of
the SEC 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
Company of expenses incurred or paid by the director, officer or
controlling person of the Company 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 Company
will, unless in the opinion of the Company's counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of the issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets the requirements for
filing on Form S-8 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Phoenix, State of Arizona, on October 26, 1999.
RADYNE COMSTREAM INC.
By: /s/ Robert C. Fitting
------------------------
Robert C. Fitting
Chief Executive Officer
IT IS AGREED, that each person whose signature appears below constitutes
and appoints Robert C. Fitting, his true and lawful attorney-in-fact, with power
of substitution and resubstitution, to execute in the name of such person, in
his capacity as a director or officer of the Company, any and all amendments to
this registration statement on Form S-8 and all instruments necessary or
incidental to them, and to file such amendments and other instruments, with the
SEC, and hereby ratify and confirm all that Mr. Fitting or his substitute, may
do or cause to be done by virtue of this power of attorney.
II-5
<PAGE>
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert C. Fitting Chief Executive Officer;
- -------------------------- Director October 26, 1999
Robert C. Fitting
Chairman of the Board of
- ------------------ Directors October 26, 1999
Lim Ming Seong
/s/ Lee Yip Loi Director October 26, 1999
- --------------------------
Lee Yip Loi
Director October 26, 1999
- --------------------------
Tang Kum Chuen
/s/ Robert A. Grimes Director October 26, 1999
- --------------------------
Robert A. Grimes
/s/ Dennis W. Elliott Director October 26, 1999
- --------------------------
Dennis W. Elliott
/s/ Garry D. Kline Vice President of Finance October 26, 1999
- -------------------------- (Principal Financial and
Garry D. Kline Accounting Officer)
II-6
<PAGE>
EXHIBIT INDEX
Exhibit No.
-----------
(4) - 1999 Employee Stock Purchase Plan
(5) - Opinion of Dorsey & Whitney LLP
(23)(a) - Consent of Dorsey & Whitney LLP (included in Exhibit 5)
(23)(b) - Consent of KPMG LLP
(23)(c) - Consent of Deloitte & Touche LLP
(24) - Power of Attorney (included in Signatures)
II-7
EXHIBIT 4
RADYNE COMSTREAM INC.
1999 EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I. INTRODUCTION
Section 1.01 Purpose. The purpose of the Radyne ComStream Inc. 1999
Employee Stock Purchase Plan is to provide employees of Radyne ComStream Inc., a
New York corporation, and certain related corporations with an opportunity to
share in the ownership of the Company by providing them with a convenient means
for regular and systematic purchases of the Company's Common Stock, par value
$0.002 per share, and, thus, to develop a stronger incentive to work for the
continued success of the Company.
Section 1.02 Rules of Interpretation. It is intended that the Plan be an
"employee stock purchase plan" as defined in Section 423(b) of the Internal
Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations
promulgated thereunder. Accordingly, the Plan shall be interpreted and
administered in a manner consistent therewith. All Participants in the Plan will
have the same rights and privileges consistent with the provisions of the Plan.
Section 1.03 Definitions. For purposes of the Plan, the following terms
will have the meanings set forth below:
(a) "Acceleration Date" means the earlier of the date of stockholder
approval or approval by the Company's Board of Directors of (i) any
consolidation or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which shares of Company
Common Stock would be converted into cash, securities or other property,
other than a merger of the Company in which stockholders of the Company
immediately prior to the merger have the same proportionate ownership of
stock in the surviving corporation immediately after the merger; (ii) any
sale, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company; or
(iii) any plan of liquidation or dissolution of the Company.
(b) "Affiliate" means any subsidiary corporation of the Company, as
defined in Section 424(f) of the Code, whether now or hereafter acquired or
established.
(c) "Committee" means the committee described in Section 10.01.
(d) "Common Stock" means the Company's Common Stock, $0.002 par value,
as such stock may be adjusted for changes in the stock or the Company as
contemplated by Article XI herein.
<PAGE>
(e) "Company" means Radyne ComStream Inc., a New York corporation, and
its successors by merger or consolidation as contemplated by Article XI
herein.
(f) "Current Compensation" means all regular wage, salary and
commission payments paid by the Company to a Participant in accordance with
the terms of his or her employment, but excluding annual bonus payments and
all other forms of special compensation.
(g) "Fair Market Value" of Common Stock as of a given date means the
price, determined in good faith by the Committee, at which a willing buyer
would purchase and a willing seller would sell a share thereof, both being
informed of all material facts and under no compulsion to act. However, if
the Common Stock is quoted on the NASDAQ National Market or the NASDAQ
SmallCap Market, such Fair Market Value shall be the last readily available
sales price for the date as of which such Fair Market Value is to be
determined or, if no sales occurred on such date, such Fair Market Value
shall be the mean between the last bid and asked prices on such system on
the date as of which such Fair Market Value is to be determined; or if the
Common Stock is listed on a national securities exchange, such Fair Market
Value shall be the last sale price of such Common Stock on such exchange on
the date as of which such Fair Market Value is to be determined or, if no
sales occurred on such date, the mean between the closing bid and asked
prices on such date.
(h) "Participant" means a Permanent Full-Time Employee who is eligible
to participate in the Plan under Section 2.01 and who has elected to
participate in the Plan.
(i) "Participating Affiliate" means ComStream Corporation, ComStream
UK Limited and any Affiliate which has been designated by the Committee in
advance of the Purchase Period in question as a corporation whose eligible
Permanent Full-Time Employees may participate in the Plan.
(j) "Permanent Full-Time Employee" means an employee of the Company or
a Participating Affiliate as of the first day of a Purchase Period,
including an officer or director who is also an employee, but excluding an
employee whose customary employment is less than 20 hours per week.
(k) "Plan" means the Radyne ComStream Inc. 1999 Employee Stock
Purchase Plan, as amended, the provisions of which are set forth herein.
(l) "Purchase Period" means the approximately 6-month period beginning
on the first business day in January or July and ending on the last
business day in June or December of each year; provided, however, that the
initial Purchase Period will commence on the latest of (i) the date of
adoption of this Plan, (ii) the date of shareholder approval of this Plan
or (iii) the effective date set forth in Section 9.01, and will terminate
on December 31, 1999, and that the then-current Purchase Period will end
upon the occurrence of an Acceleration Date.
<PAGE>
(m) "Stock Purchase Account" means the account maintained on the books
and records of the Company recording the amount received from each
Participant through payroll deductions made under the Plan.
ARTICLE II. ELIGIBILITY AND PARTICIPATION
Section 2.01 Eligible Employees. All Permanent Full-Time Employees shall be
eligible to participate in the Plan beginning on the first day of the first
Purchase Period to commence after such person becomes a Permanent Full-Time
Employee. Subject to the provisions of Article VI, each such employee will
continue to be eligible to participate in the Plan so long as he or she remains
a Permanent Full-Time Employee.
Section 2.02 Election to Participate. An eligible Permanent Full-Time
Employee may elect to participate in the Plan for a given Purchase Period by
filing with the Company, in advance of that Purchase Period and in accordance
with such terms and conditions as the Committee in its sole discretion may
impose, a form provided by the Company for such purpose (which authorizes
regular payroll deductions from Current Compensation beginning with the first
payday in that Purchase Period and continuing until the employee withdraws from
the Plan or ceases to be eligible to participate in the Plan). Notwithstanding
the foregoing, however, an eligible Permanent Full-Time Employee may not
participate in the Plan for a Purchase Period if any portion of such Purchase
Period is included within the 12-month period following receipt of a "hardship
distribution" (described in Treasury Regulations Section 1.401(k)-1(d)(1)(ii)
and (2) or any successor provision) from a qualified plan governed by Section
401 of the Code.
Section 2.03 Limits on Stock Purchase. No employee shall be granted any
right to purchase Common Stock hereunder if such employee, immediately after
such a right to purchase is granted, would own, directly or indirectly, within
the meaning of Section 423(b)(3) and Section 424(d) of the Code, Common Stock
possessing 5% or more of the total combined voting power or value of all the
classes of the capital stock of the Company or of all Affiliates.
Section 2.04 Voluntary Participation. Participation in the Plan on the part
of a Participant is voluntary and such participation is not a condition of
employment nor does participation in the Plan entitle a Participant to be
retained as an employee.
ARTICLE III. PAYROLL DEDUCTIONS AND STOCK PURCHASE ACCOUNT
Section 3.01 Deduction from Pay. The form described in Section 2.02 will
permit a Participant to elect payroll deductions of any multiple of 1% but not
less than 1% or more than 15% of such Participant's Current Compensation for
each pay period, subject to such other limitations as the Committee in its sole
discretion may impose. A Participant may request the cessation of such payroll
deductions at any time, subject to such limitations as the Committee in its sole
discretion may impose.
Section 3.02 Credit to Account. Payroll deductions will be credited to the
Participant's Stock Purchase Account on each payday.
<PAGE>
Section 3.03 Interest. No interest will be paid upon payroll deductions
credited to, or on deposit in, a Participant's Stock Purchase Account.
Section 3.04 Nature of Account. The Stock Purchase Account is established
solely for accounting purposes, and all amounts credited to the Stock Purchase
Account will remain part of the general assets of the Company or the
Participating Affiliate (as the case may be).
Section 3.05 No Additional Contributions. A Participant may not make any
payment into the Stock Purchase Account other than the payroll deductions made
pursuant to the Plan.
ARTICLE IV. RIGHT TO PURCHASE SHARES
Section 4.01 Number of Shares. Each Participant will have the right to
purchase on the last business day of the Purchase Period all, but not less than
all, of the largest number of whole shares of Common Stock that can be purchased
at the price specified in Section 4.02 with the entire credit balance in the
Participant's Stock Purchase Account, subject to the limitation that in
accordance with Section 423(b)(8) of the Code, no more than $25,000 in Fair
Market Value (determined at the beginning of each Purchase Period) of Common
Stock and other stock may be purchased under the Plan and all other employee
stock purchase plans (if any) of the Company and the Affiliates by any one
Participant for any calendar year. If the purchases for all Participants would
otherwise cause the aggregate number of shares of Common Stock to be sold under
the Plan to exceed the number specified in Section 10.03, each Participant shall
be allocated a pro rata portion of the Common Stock to be sold.
Section 4.02 Purchase Price. The purchase price for any Purchase Period
shall be the lesser of (a) 85% of the Fair Market Value of the Common Stock on
the first business day of that Purchase Period or (b) 85% of the Fair Market
Value of the Common Stock on the last business day of that Purchase Period, in
each case rounded up to the next higher full cent.
ARTICLE V. EXERCISE OF RIGHT
Section 5.01 Purchase of Stock. On the last business day of a Purchase
Period, the entire credit balance in each Participant's Stock Purchase Account
will be used to purchase the largest number of whole shares of Common Stock
purchasable with such amount (subject to the limitations of Section 4.01),
unless the Participant has filed with the Company, in advance of that date and
subject to such terms and conditions as the Committee in its sole discretion may
impose, a form provided by the Company which requests the distribution of the
entire credit balance in cash.
Section 5.02 Cash Distributions. Any amount remaining in a Participant's
Stock Purchase Account after the last business day of a Purchase Period will be
paid to the Participant in cash within 30 days after the end of that Purchase
Period, unless such amount shall be less than the purchase price of a share of
Common Stock as determined under Section 4.02 for such Purchase Period.
<PAGE>
Section 5.03 Notice of Acceleration Date. The Company shall use its best
efforts to notify each Participant in writing at least ten days prior to any
Acceleration Date that the then current Purchase Period will end on such
Acceleration Date.
ARTICLE VI. WITHDRAWAL FROM PLAN; SALE OF STOCK
Section 6.01 Voluntary Withdrawal. A Participant may, in accordance with
such terms and conditions as the Committee in its sole discretion may impose,
withdraw from the Plan and cease payroll deductions hereunder by filing with the
Company a form provided for this purpose. In such event, the entire credit
balance in the Participant's Stock Purchase Account will be paid to the
Participant in cash within 30 days. A Participant who withdraws from the Plan
will not be eligible to reenter the Plan until the beginning of the next
Purchase Period following the date of such withdrawal.
Section 6.02 Death. Subject to such terms and conditions as the Committee
in its sole discretion may impose, upon the death of a Participant, no further
amounts shall be credited to the Participant's Stock Purchase Account.
Thereafter, on the last business day of the Purchase Period during which such
Participant's death occurred and in accordance with Section 5.01, the entire
credit balance in such Participant's Stock Purchase Account will be used to
purchase Common Stock, unless such Participant's estate has filed with the
Company, in advance of that day and subject to such terms and conditions as the
Committee in its sole discretion may impose, a form provided by the Company
which elects to have the entire credit balance in such Participant's Stock
Account distributed in cash within 30 days after the end of that Purchase Period
or at such earlier time as the Committee in its sole discretion may decide. Each
Participant, however, may designate one or more beneficiaries who, upon death,
are to receive the Common Stock or the amount that otherwise would have been
distributed or paid to the Participant's estate and may change or revoke any
such designation from time to time. No such designation, change or revocation
will be effective unless made by the Participant in writing and filed with the
Company during the Participant's lifetime. Unless the Participant has otherwise
specified the beneficiary designation, the beneficiary or beneficiaries so
designated will become fixed as of the date of the death of the Participant so
that, if a beneficiary survives the Participant but dies before the receipt of
the payment due such beneficiary, the payment will be made to such beneficiary's
estate.
Section 6.03 Termination of Employment. Subject to such terms and
conditions as the Committee in its sole discretion may impose, upon a
Participant's normal or early retirement with the consent of the Company under
any pension or retirement plan of the Company or Participating Affiliate, no
further amounts shall be credited to the Participant's Stock Purchase Account.
Thereafter, on the last business day of the Purchase Period during which such
Participant's approved retirement occurred and in accordance with Section 5.01,
the entire credit balance in such Participant's Stock Purchase Account will be
used to purchase Common Stock, unless such Participant has filed with the
Company, in advance of that day and subject to such terms and conditions as the
Committee in its sole discretion may impose, a form provided by the Company
which elects to receive the entire credit balance in such Participant's Stock
Purchase Account in cash within 30 days after the end of that Purchase Period,
provided that such Participant shall have no right to purchase Common Stock in
the event that the last day of such Purchase Period occurs more than three
months following the termination of such Participant's
<PAGE>
employment with the Company by reason of such an approved retirement. In the
event of any other termination of employment (other than death) with the Company
or a Participating Affiliate, participation in the Plan will cease on the date
the Participant ceases to be a Permanent Full-Time Employee for any reason. In
such event, the entire credit balance in such Participant's Stock Purchase
Account will be paid to the Participant in cash within 30 days. For purposes of
this Section 6.03, a transfer of employment to any Affiliate, or a leave of
absence which has been approved by the Committee, will not be deemed a
termination of employment as a Permanent Full-Time Employee.
ARTICLE VII. NONTRANSFERABILITY
Section 7.01 Nontransferable Right to Purchase. The right to purchase
Common Stock hereunder may not be assigned, transferred, pledged or hypothecated
(whether by operation of law or otherwise), except as provided in Section 6.02,
and will not be subject to execution, attachment or similar process. Any
attempted assignment, transfer, pledge, hypothecation or other disposition or
levy of attachment or similar process upon the right to purchase will be null
and void and without effect.
Section 7.02 Nontransferable Account. Except as provided in Section 6.02,
the amounts credited to a Stock Purchase Account may not be assigned,
transferred, pledged or hypothecated in any way, and any attempted assignment,
transfer, pledge, hypothecation or other disposition of such amounts will be
null and void and without effect.
ARTICLE VIII. STOCK CERTIFICATES
Section 8.01 Delivery. Promptly after the last day of each Purchase Period
and subject to such terms and conditions as the Committee in its sole discretion
may impose, the Company will cause to be delivered to or for the benefit of the
Participant a certificate representing the Common Stock purchased on the last
business day of such Purchase Period.
Section 8.02 Securities Laws. The Company shall not be required to issue or
deliver any certificate representing Common Stock prior to registration under
the Securities Act of 1933, as amended, or registration or qualification under
any state law if such registration is required. The Company shall use its best
efforts to accomplish such registration (if and to the extent required) not
later than a reasonable time following the Purchase Period, and delivery of
certificates may be deferred until such registration is accomplished.
Section 8.03 Completion of Purchase. A Participant shall have no interest
in the Common Stock purchased until a certificate representing the same is
issued to or for the benefit of the Participant.
Section 8.04 Form of Ownership. The certificates representing Common Stock
issued under the Plan will be registered in the name of the Participant or
jointly in the name of the Participant and another person, as the Participant
may direct on a form provided by the Company.
<PAGE>
ARTICLE IX. EFFECTIVE DATE, AMENDMENT AND
TERMINATION OF PLAN
Section 9.01 Effective Date. The Plan was approved by the Board of
Directors on June 15, 1999 and shall be approved by the stockholders of the
Company within twelve (12) months thereof; provided, however, that the Plan
shall in no event be effective prior to the initial date of issuance of Common
Stock pursuant to that certain Registration Statement on Form S-2 (File No.
333-70403) which the Company has filed with the Securities and Exchange
Commission.
Section 9.02 Plan Commencement. The initial Purchase Period under the Plan
will commence on the date prescribed by Section 1.03(l).
Section 9.03 Powers of Board. The Board of Directors may amend or
discontinue the Plan at any time. No amendment or discontinuation of the Plan,
however, shall without stockholder approval be made that: (i) absent such
stockholder approval, would cause Rule 16b-3 under the Securities Exchange Act
of 1934, as amended (the "Act") to become unavailable with respect to the Plan,
(ii) requires stockholder approval under any rules or regulations of the
National Association of Securities Dealers, Inc. or any securities exchange that
are applicable to the Company, or (iii) permit the issuance of Common Stock
before payment therefor in full
Section 9.04 Automatic Termination. The Plan shall automatically terminate
when all of the shares of Common Stock provided for in Section 10.03 have been
sold.
ARTICLE X. ADMINISTRATION
Section 10.01 The Committee. The Plan shall be administered by the Board of
Directors or a committee (the "Committee") of two or more directors of the
Company, none of whom shall be officers or employees of the Company and all of
whom shall be "disinterested persons" with respect to the Plan within the
meaning of Rule 16b-3 under the Act. The members of the Committee shall be
appointed by and serve at the pleasure of the Board of Directors.
Section 10.02 Powers of Committee. Subject to the provisions of the Plan,
the Committee shall have full authority to administer the Plan, including
authority to interpret and construe any provision of the Plan, to establish
deadlines by which the various administrative forms must be received in order to
be effective, and to adopt such other rules and regulations for administering
the Plan as it may deem appropriate. The Committee shall have full and complete
authority to determine whether all or any part of the Common Stock acquired
pursuant to the Plan shall be subject to restrictions on the transferability
thereof or any other restrictions affecting in any manner a Participant's rights
with respect thereto but any such restrictions shall be contained in the form by
which a Participant elects to participate in the Plan pursuant to Section 2.02.
Decisions of the Committee will be final and binding on all parties who have an
interest in the Plan.
<PAGE>
Section 10.03 Stock to be Sold. The Common Stock to be issued and sold
under the Plan may be treasury shares or authorized but unissued shares, or the
Company may purchase Common Stock in the market for sale under the Plan. Except
as provided in Section 11.01, the aggregate number of shares of Common Stock to
be sold under the Plan will not exceed 1,000,000 shares.
Section 10.04 Notices. Notices to the Committee should be addressed as
follows:
Radyne ComStream Inc.
3138 East Elwood Street
Phoenix, AZ 85034
Attention: Garry D. Kline
ARTICLE XI. ADJUSTMENT FOR CHANGES
IN STOCK OR COMPANY
Section 11.01 Stock Dividend or Reclassification. If the outstanding shares
of Common Stock are increased, decreased, changed into or exchanged for a
different number or kind of securities of the Company, or shares of a different
par value or without par value, through reorganization, recapitalization,
reclassification, stock dividend, stock split, amendment to the Company's
Certificate of Incorporation, reverse stock split or otherwise, an appropriate
adjustment shall be made in the maximum numbers and kind of securities to be
purchased under the Plan with a corresponding adjustment in the purchase price
to be paid therefor.
Section 11.02 Merger or Consolidation. If the Company is merged into or
consolidated with one or more corporations during the term of the Plan,
appropriate adjustments will be made to give effect thereto on an equitable
basis in terms of issuance of shares of the corporation surviving the merger or
of the consolidated corporation, as the case may be.
ARTICLE XII. APPLICABLE LAW
Rights to purchase Common Stock granted under the Plan shall be construed
and shall take effect in accordance with the laws of the State of New York,
without giving effect to conflicts of laws principles thereof.
EXHIBIT 5
DORSEY & WHITNEY LLP
250 Park Avenue
New York, New York 10177
Tel. (212) 415-9200
Fax. (212) 953-7201
November 5, 1999
Radyne ComStream Inc.
3138 East Elwood Street
Phoenix, Arizona 85034
Re: Radyne ComStream Inc.
Registration Statement on Form S-8
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Gentlemen:
As counsel to Radyne ComStream Inc., a New York corporation (the
"Company"), with respect to its registration statement on Form S-8 being filed
with the Securities and Exchange Commission, relating to 1,000,000 shares of its
common stock, par value $.002 (the "Shares") authorized by the Company's 1999
Employee Stock Purchase Plan (the "Plan"), we have reviewed the Plan, the
Company's Certificate of Incorporation and By-Laws and such other documents as
we deemed relevant in connection with this opinion.
Based upon the foregoing, it is our opinion that the Shares, when issued in
accordance with the terms of the Plan, will be legally issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the above
mentioned registration statement.
Very truly yours,
DORSEY & WHITNEY LLP
Exhibit 23(b)
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Stockholders
Radyne ComStream Inc.:
We consent to the incorporation by reference in the registration statement of
Radyne ComStream Inc. on Form S-8 filed as of November 5, 1999, of our report
dated March 19, 1999, except for Note 4, which is as of August 4, 1999, on the
restated consolidated balance sheet of Radyne ComStream Inc. as of December 31,
1998 and the related restated consolidated statements of operations,
stockholders' capital deficiency and cash flows for the year ended December 31,
1998, which report appears in the December 31, 1998 annual report on Form 10-K/A
of Radyne ComStream Inc.
KPMG LLP
Phoenix, Arizona
October 29, 1999
EXHIBIT 23(c)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this registration statement of
Radyne ComStream Inc. (formerly Radyne Corp.) on Form S-8 of our report dated
February 4, 1998, appearing in the Annual Report on Form 10-K/A of Radyne
ComStream Inc. for the year ended December 31, 1998.
DELOITTE & TOUCHE LLP
Phoenix, Arizona
November 3, 1999
