As filed with the Securities and Exchange Commission on ___________, 1998
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
The Securities Act of 1933
MOSCOM CORPORATION
(Exact name of Registrant as Specified in its Charter)
DELAWARE
(State or other Jurisdiction of Incorporation or Organization)
16-1192368
(IRS Employer Identification No.)
3750 Monroe Avenue
Pittsford, New York 14539
(Address of principal executive offices)
1998 Long-Term Incentive Plan
(Full Title of Plan)
Robert L. Boxer, Esq.
Vice President, Secretary and Corporate Counsel
Moscom Corporation
3750 Monroe Avenue
Pittsford, New York 14534
(716) 381-6000
(Name, address, including zip code, and telephone number including area
code, of Agent for Service)
with a copy to:
Catherine A. King, Esq.
Harris Beach & Wilcox, LLP
130 East Main Street
Rochester, New York 14604
(716) 232-4440
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(1) Share(2) Price(2) Fee(2)
Common Stock 2,500,000 $6.25 $15,625,000 $4735
(1) The Registration Statement also includes an indeterminate number of
additional shares that may become issuable as a result of terminated,
expired or surrendered options to purchase Common Stock, or pursuant to
the antidilution provisions of the Plan.
(2) In accordance with Rule 457, calculated on the basis of the closing sale
price of the Common Stock on the Nasdaq National Market System on May 27, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998.
3. All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all of the shares of common
stock offered have been sold or which deregisters all of such shares then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
4. The description of the common stock of the Registrant is
contained in its Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934, which became effective on October 3,
1985, including any amendment(s) or report(s) filed for the purpose of
updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director,
officer, employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities against
amounts paid and expenses incurred in connection with an action or
proceeding to which he or she is or is threatened to be made a party by
reason of such position, if such person shall have acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding,
if such person had no reasonable cause to believe his or her conduct was
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unlawful, provided that, in the case of actions brought by or in the
right of the corporation, no indemnification shall be made with respect
to any matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under
the circumstances. The Registrant's Restated Certificate of
Incorporation provides that the Registrant shall indemnify its directors
and officers to the fullest extent permitted by the Delaware General
Corporation Law.
The Registrant's Restated Certificate of Incorporation also provides
that no director shall be personally liable to the Registrant or its
stockholders for monetary damages for breach of his or her fiduciary duty
as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law or (iv) for any transaction in which the director derived
an improper personal benefit.
Article VIII of the of By-Laws of the Registrant provides for
indemnification for the officers and directors of the Registrant to the
full extent permitted by applicable law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed with this Registration Statement:
4.1 1998 Long-Term Incentive Plan. (Incorporated by reference
from Registrant's proxy material filed on February 27, 1998.)
4.2 1993 Stock Option Plan (Incorporated by reference from Registrant's
Form S-8 filed October 5, 1992.
5. Opinion of Harris Beach & Wilcox, LLP.
23.1 Consent of Arthur Andersen, LLP.
23.2 Consent of Deloitte & Touche, LLP
23.3 Consent of Harris Beach & Wilcox, LLP (included in Exhibit 5).
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ITEM 9. UNDERTAKINGS
(a) Rule 415 Offerings.
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 the Registration Statement (or the most
recent-post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
the volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(I) and (a)(1)(ii) do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at 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.
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(b) Filings Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this 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) Filing of Registration Statement on Forms S-8.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions of the
Registrant's charter, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person
in connection with the securities being offered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement or amendment thereto to be signed on its
behalf by the undersigned, thereunto duly authorized, in Pittsford, New
York, on May 14, 1998.
MOSCOM CORPORATION
By: __________________________________
David G. Mazzella, President and
Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints David
G. Mazzella and Robert L. Boxer, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them, for him and in his name, place and stead,
and in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 of
Moscom Corporation and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, hereby
ratifying and confirming all that said attorneys-in-fact and agents or
any of them or their or his substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 14th day of May, 1998.
SIGNATURE TITLE
___________________________________ President, Chief Executive Officer and
David G. Mazzella Director (Principal Executive Officer)
___________________________________ Treasurer (Principal Financial and
Ronald C. Lundy Accounting Officer)
___________________________________ Director
John E. Gould
___________________________________ Director
William J. Reilly
___________________________________ Director
John E. Mooney
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HARRIS BEACH & WILCOX
A LIMITED LIABILITY PARTNERSHIP
ATTORNEYS AT LAW
THE GRANITE BUILDING
130 EAST MAIN STREET
ROCHESTER, N.Y. 14604-1687
(716) 232-4440
May 28, 1998
Moscom Corporation
3750 Monroe Avenue
Pittsford, New York 14534
Ladies and Gentlemen:
We have acted as counsel to Moscom Corporation, a Delaware
corporation (the "Company"), in connection with the filing of the
Company's registration statement on Form S-8 with the Securities
and Exchange Commission on or about May 28, 1998 (the
"Registration Statement"), under the Securities Act of 1933, as
amended. The Registration Statement is being filed in connection
with the Company's offering of up to 2,500,000 shares of Common
Stock (the "Shares") pursuant to the Company's 1998 Long-Term
Incentive Plan (the "Plan").
We are familiar with the proceedings to date with respect to
such offering and have examined such records, documents and
matters of law and satisfied ourselves as to such matters of fact
as we have considered relevant for purposes of this opinion.
For purposes of this opinion, we have assumed the
authenticity of all documents submitted to us as originals and the
conformity to the originals of all documents submitted to us as
copies. We have also assumed the genuineness of the signatures of
persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on
behalf of the parties thereto, and the due authorization,
execution and delivery of all documents by the parties thereto.
We are of the opinion that, when the Shares shall have been
issued and sold on the terms contemplated by the Plan, and the
Registration Statement shall have become effective, the Shares
will be legally issued, fully paid and non-assessable.
This opinion shall be limited to the General Corporation Law
of the State of Delaware and the federal securities laws of the
United States of America.
We hereby consent to the use of this Opinion as an exhibit to
the Registration Statement.
Very truly yours,
s/Harris, Beach & Wilcox, LLP
HARRIS BEACH & WILCOX, LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement
of our reports dated February 4, 1998 included in Moscom
Corporation's Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Rochester, New York
May 29, 1998
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of MOSCOM Corporation on Form S-8 of
our report dated February 7, 1996, appearing in the annual
Report on Form 10-K of MOSCOM Corporation for the year
ended December 31, 1997.
DELOITTE & TOUCHE LLP
Rochester, New York
May 28, 1998
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