-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hf7KW/srRG1lVuS3xpBEatH6AVkCJrdQukSYZE2GEx/cXGNDOwRwzHSG81eXkXC7 fRlVGhm2L84dvgzJbnpQtw== 0001019056-05-000404.txt : 20050408 0001019056-05-000404.hdr.sgml : 20050408 20050408140557 ACCESSION NUMBER: 0001019056-05-000404 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20050408 DATE AS OF CHANGE: 20050408 EFFECTIVENESS DATE: 20050408 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL DATACOMM INDUSTRIES INC CENTRAL INDEX KEY: 0000040518 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE & TELEGRAPH APPARATUS [3661] IRS NUMBER: 060853856 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-123946 FILM NUMBER: 05741128 BUSINESS ADDRESS: STREET 1: ROUTE 63 CITY: MIDDLEBURY STATE: CT ZIP: 06762 BUSINESS PHONE: 2035741118 MAIL ADDRESS: STREET 1: P O BOX 1299 CITY: MIDDLEBURY STATE: CT ZIP: 06762-1299 S-8 1 general_s8.txt FORM S-8 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM S-8 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 jurisdiction of (I.R.S. Employer Incorporation or organization) Identification No.) 6 Rubber Avenue Naugatuck, CT 06770; (203) 729-0271 (address and telephone number of registrant's principal executive offices and principal place of business) 2003 Stock and Bonus Plan (Full title of the Plan) Gerald Gordon, Esq. Weisman Celler Spett & Modlin, P.C. 445 Park Avenue New York, New York 10022 (Name and address of agent for service) (212) 371-5400 (Telephone number, including Area Code, of Agent for Service) Calculation of Registration Fee Proposed Proposed Title of Each Offering Maximum Amount of Class of Securities Amount to be Price per Aggregate Registration to be Registered(1) Registered Per share(2) Offering Price Fee - ------------------- ---------- ------------ -------------- --- Common Stock 918,536 $0.70 $642,975 $75.68 1) The number of shares registered includes 459,268 shares issuable upon conversion of a like number of shares of Class B Stock. 2) The Offering Price is used solely for purposes of estimating the registration fee pursuant to Rule 457(h) promulgated pursuant to the Securities Act of 1933 based on the Pink Sheets last sale price on April 6, 2005. Part I Information Required in the Section 10(a) Prospectus Item 1. Plan Information. The information required by Part I of Form S-8 will be contained in the Section 10(a) Prospectus omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended and the Note to Part I of Form S-8. Item 2. Registrant Information and Employee Plan Annual Information. The information required by Part I of Form S-8 will be contained in the Section 10(a) Prospectus omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended and the Note to Part I of Form S-8. Part II Information Required in the Registration Statement Item 3. Incorporation of documents by Reference. The following are hereby incorporated by reference: (a) The Registrant's latest annual report on Form 10-K, for the fiscal year ended September 30, 2004, filed on January 13, 2005, as amended on February 24, 2005. (b) The Registrant's latest quarterly report on Form 10-QSB for the quarter ended December 31, 2004, filed on February 14, 2005. (c) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year covered by the Form 10-K referred to in (a) above. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in the registration statement and to be part thereof 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 the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities. Not Applicable 2 Item 5. Interest of Named Experts and Counsel. Howard S. Modlin, President of the law firm Weisman Celler Spett & Modlin, P.C., which is delivering the legal opinion covering the validity of the Common Stock covered by this Registration Statement is Chairman of the Board, President, Chief Executive Officer and Secretary of the Registrant and received 459,218 shares of Class B Stock under the 2003 Stock and Bonus Plan which is convertible on a share for share basis into the Common Stock registered hereunder. Item 6. Indemnification of Directors and Officers. Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for payments of unlawful dividends or unlawful stock repurchases or redemptions or (iv) for any transaction from which the director derived an improper personal benefit. The Registrant's Restated Certificate of Incorporation, as amended, contains such a provision. Section 145 of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorney's fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation - a "derivative action"), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interest of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorney's fees) incurred in connection with defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The Registrant's Restated Certificate of Incorporation, as amended, contains such a provision. The Registrant has in effect a directors and officers liability insurance policy providing insurance for the directors and officers of the Registrant against certain liabilities asserted against them or incurred by them, including liabilities under the Securities Act of 1933 and the Securities Exchange Act of 1934. The Registrant pays the entire premium of this policy. Item 7. Exemption from Registration Claimed. The stock options, stock awards and grants issued on September 30, 2003 were issued pursuant to the exemption under Section 4(2) of the Securities Act of 1933, as amended for transactions by an issuer not involving any public offering. 3 Item 8. Exhibits. The following exhibits are filed with or incorporated by reference into this Registration Statement pursuant to Item 601 of Regulation S-K. Exhibit No. Description 4.1 The Registrant's Corrected Certificate of Amended and Restated Certificate of Incorporation (1) 4.2 2003 Stock and Bonus Plan (2) 4.3 Form of Stock Option under 2003 Stock and Bonus Plan (3) 4.4 Form of Conditional Grant under 2003 Stock and Bonus Plan (4) 5.1 Opinion of Weisman Celler Spett & Modlin, P.C. 23.1 Consent of Eisner LLP 23.2 Consent of PricewaterhouseCoopers LLP 23.3 Consent of Weisman Celler Spett & Modlin, P.C. (included in Exhibit 5.1) (1) Incorporated by reference to Exhibit 3.1 of Form 10-K for the year ended September 30, 2004. (2) Incorporated by reference to Exhibit 10.2 of Form 8-K/A dated September 18, 2003. (3) Incorporated by reference to Exhibit 10.2 of Form 10-K for the year ended September 30, 2003. (4) Incorporated by reference to Exhibit 10.3 of Form 10-K for the year ended September 30, 2003. Item 9. Undertakings. The undersigned registrant hereby undertakes: (a) (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 (the "Securities Act"); (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, represents 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 the registration statement or any material change to such information 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. (b) 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 4 section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration 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) To deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. (d) That insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Naugatuck, Connecticut on April 7, 2005. GENERAL DATACOMM INDUSTRIES, INC. By /s/ WILLIAM G. HENRY ----------------------------------------------- William G. Henry, Vice President, Finance and Administration and Chief Financial Officer 5 Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ HOWARD S. MODLIN Chief Executive April 7, 2005 - -------------------------- Officer and Chairman Howard S. Modlin of the Board of Directors /s/ WILLIAM G. HENRY Chief Financial Officer April 7, 2005 - -------------------------- William G. Henry /s/ LEE M. PASCHALL Director April 7, 2005 - -------------------------- Lee M. Paschall /s/ JOHN L. SEGALL Director April 7, 2005 - -------------------------- John L. Segall Director April 7, 2005 - -------------------------- Aletta Richards EXHIBIT INDEX Exhibit No. Description 4.1 The Registrant's Corrected Certificate of Amended and Restated Certificate of Incorporation (1) 4.2 2003 Stock and Bonus Plan (2) 4.3 Form of Stock Option under 2003 Stock and Bonus Plan (3) 4.4 Form of Conditional Grant under 2003 Stock and Bonus Plan (4) 5.1 Opinion of Weisman Celler Spett & Modlin, P.C. 23.1 Consent of Eisner LLP 23.2 Consent of PricewaterhouseCoopers LLP 23.3 Consent of Weisman Celler Spett & Modlin, P.C. (included in Exhibit 5.1) 6 EX-23.1 2 ex23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in the registration statement on Form S-8 of General DataComm Industries, Inc. of our report dated January 4, 2005 relating to our audits of the consolidated balance sheets of General DataComm Industries, Inc. as of September 30, 2004 and 2003 and the related consolidated statements of operations, stockholders' deficit and cash flows for the years then ended and the related schedule, which report appears in the September 30, 2004 annual report on Form 10-K of General DataComm Industries, Inc. Our report contains an explanatory paragraph that states that the Company has both a working capital and stockholders' deficit, has limited ability to obtain new financing and during fiscal 2005 may be unable to comply with financial loan covenants related to its restructured secured indebtedness, all of which raise substantial doubt about its ability to continue as a going concern. The financial statements do not include any adjustments that might result from the outcome of this uncertainty. /s/ Eisner LLP New York, New York April 7, 2005 7 EX-23.2 3 ex23_2.txt EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in this Registration Statement On Form S-8 of our report dated January 12, 2004 relating to the consolidated financial statements and financial statement schedule of General DataComm Industries, Inc. which appears in General DataComm Industries, Inc. Annual Report on Form 10-K for the year ended September 30, 2002. /s/ PricewaterhouseCoopers LLP Hartford, CT April 7, 2005 8 EX-5.1 4 ex5_1.txt EXHIBIT 5.1 WEISMAN CELLER SPETT & MODLIN, P.C. Exhibit 5.1 445 PARK AVENUE NEW YORK, N. Y. 10022 (212) 371-5400 TELECOPIER (212) 371-5407 April 7, 2005 General DataComm Industries, Inc. 6 Rubber Avenue Naugatuck, CT 06770 Re: General DataComm Industries, Inc. 2003 Stock and Bonus Plan ------------------------- Gentlemen: We have assisted in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), relating to an aggregate of 918,536 shares of Common Stock, $0.01 par value per share (the "Shares"), of General DataComm Industries, Inc., a Delaware corporation (the "Company"), issuable under the Company's 2003 Stock and bonus Plan (the "Plan"). We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion. In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents. Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable. 9 We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of the Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission. Very truly yours, /s/ WEISMAN CELLER SPETT & MODLIN, P.C. --------------------------------------- WEISMAN CELLER SPETT & MODLIN, P.C. 10 -----END PRIVACY-ENHANCED MESSAGE-----