-----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, TGFR5r38VlPOaFqwXUjrZMUK6hrs79mfM95jXUSbH+i6A+6BqrWbH6GeaRnB3Yf1 pk4c7y7mxyaMxSGQZOv2og== 0001005150-97-000207.txt : 19970401 0001005150-97-000207.hdr.sgml : 19970401 ACCESSION NUMBER: 0001005150-97-000207 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970331 EFFECTIVENESS DATE: 19970331 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ORION NEWCO SERVICES INC CENTRAL INDEX KEY: 0001029850 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-24213 FILM NUMBER: 97569294 BUSINESS ADDRESS: STREET 1: 2440 RESEARCH BLVD SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012588101 MAIL ADDRESS: STREET 1: 2440 RESEARCH BLVD STREET 2: SUITE 400 CITY: ROCKVILLE STATE: MD ZIP: 20850 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on March 31, 1997 Registration No. 333-________ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------ Orion Network Systems, Inc. (Exact name of registrant as specified in its charter) Delaware 52-2008654 (State or other jurisdiction (I.R.S. Employer Identification No.) of incorporation or organization) ------------------ 2440 Research Boulevard, Suite 400 Rockville, Maryland 20850 (Address of principal executive offices) ------------------ Orion Network Systems, Inc. Non-Employee Director Stock Option Plan (Full title of the plan) ------------------ Richard H. Shay, Esq. 2440 Research Boulevard, Suite 400 Rockville, Maryland 20850 (301) 258-8101 (Name, address and telephone number, including area code, of agent for service) ------------------ Copy to: Steven M. Kaufman, Esq. Hogan & Hartson L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 (202) 637-5600 ------------------ CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------- Proposed Proposed Title of securities Amount to be maximum offering maximum aggregate Amount of to be registered registered price per share (1) offering price (1) registration fee (1) -------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 380,000 $ 10.0625 $3,823,750 $1,159 =====================================================================================================================
(1) Estimated pursuant to Rule 457(c) and (h) solely for purposes of calculating the amount of the registration fee. The proposed maximum offering price per share was determined based upon the average of the high and low prices per share of the Orion Network Systems, Inc. Common Stock on March 27, 1997, as reported on the Nasdaq National Market. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I will be sent or given to eligible directors as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. Orion Network Systems, Inc. (the "Registrant") is a recently formed Delaware corporation that is the corporate successor to Orion Oldco Services, Inc. ("Old Orion"), which has been filing reports with the Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since August 1995. The Registrant hereby incorporates by reference into this Registration Statement the following documents filed with the Commission by the Registrant and Old Orion: (a) Old Orion's annual report on Form 10-K dated March 29, 1996 filed pursuant to Sections 13(a) and 15(d) of the Exchange Act, which contains audited financial statements for Old Orion's fiscal year ended December 31, 1995; (b) All other reports of Old Orion filed pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 1995, including quarterly reports on Form 10-Q dated May 15, 1996, August 15, 1996 and November 13, 1996 for the periods ended March 31, 1996, June 30, 1996 and September 30, 1996, respectively; (c) The description of the Registrant's Common Stock, par value $.01 per share (the "Common Stock"), contained in the Registrant's Registration Statement on Form 8-B filed with the Commission on January 31, 1997; and (d) The Registrant's report on Form 8-K filed with the Commission on February 14, 1997. In addition, all documents and reports filed by the Registrant subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 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 remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents or reports. 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 2 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. (The Common Stock is registered under Section 12 of the Exchange Act.) Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Company's Restated Certificate of Incorporation, as amended (the "Restated Certificate of Incorporation"), provides that the Company's directors will not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its stockholders. This provision in the Restated Certificate of Incorporation does not eliminate the duty of care, and in appropriate circumstances equitable remedies such as an injunction or other forms of non-monetary relief would remain available under Delaware law. In accordance with the requirements of Delaware law, as amended, the Restated Certificate of Incorporation provides that the Company's directors would remain subject to liability for monetary damages (i) for any breach of their duty of loyalty to the Company or its shareholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law, (iii) under Section 174 of the Delaware Code for approval of an unlawful dividend or an unlawful stock purchase or redemption and (iv) for any transaction from which the director derived an improper personal benefit. This provision also does not affect a director's responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. The Company's Restated Certificate of Incorporation also provides that, except as expressly prohibited by law, the Company shall indemnify any person who was or is a party (or threatened to be made a party) to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was director or office of the Company (or is or was serving at the request of the Company as a director or officer of another enterprise), against expenses, liabilities and losses (including attorneys' fees), judgments, fines and amounts paid or to be paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and a manner such person reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Such indemnification shall not be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Company unless (and only to the extent that) the Delaware Court of Chancery or the court in which such action or suit was brought determines that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity. Section 145 of the General Corporation Law of the State of Delaware empowers a corporation incorporated under that statute to indemnify its directors, officers, employees and agents and its former directors, officers, employees and agents and those who serve in such capacities with another enterprise at its request against expenses, as well as judgments, fines and settlements in nonderivative lawsuits, actually and reasonably incurred by them in connection with the defense of any action, suite or proceeding in which they or any of them were or are made parties or are threatened to be made parties by reason of their serving or having served in such capacity. The 3 power to indemnify shall only exist where such officer, director, employee or agent has acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, in the case of a criminal action, where such person had no reasonable cause to believe his conduct was unlawful. However, in an action or suit by or in the right of the corporation, unless a court shall determine to the contrary, where such a person has been adjudged liable to the corporation, the corporation shall have no power of indemnification. Indemnity is mandatory to the extent a claim, issue or matter has been successfully defended. Indemnification is not deemed exclusive of any other rights to which those indemnified may be entitled, under any by-law, agreement, vote of stockholders or otherwise. A Delaware corporation also has the power to purchase and maintain insurance on behalf of the persons it has the power to indemnify, whether or not indemnity against such liability would be allowed under the statute. The Company has an insurance policy which will insure Directors and officers against damages from actions and claims incurred in the course of their duties and will insure the Company against expenses incurred in defending lawsuits arising from certain alleged acts of the Directors and officers. Insofar as indemnification for liabilities arising under the Securities Act 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 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 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 Securities Act and will be governed by the final adjudication of such issue. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Description 4.1 Restated Certificate of Incorporation, as amended, of Registrant (filed as Exhibit 3.1 to the Registrant's Registration Statement on Form 8-B filed with the Commission on January 31, 1997, and incorporated herein by reference). 4.2 Bylaws, as amended, of the Registrant (filed as Exhibit 3.2 to the Registrant's Registration Statement on Form 8-B filed with the Commission on January 31, 1997, and incorporated herein by reference). 4 4.3 Form of Common Stock Certificate (filed as Exhibit 4.5 to the Registrant's Registration Statement on Form S-4 (File No. 333-19795), and incorporated herein by reference). 4.4 Orion Network Systems, Inc. Non-Employee Director Stock Option Plan (filed as Exhibit 10.43 to the Registrant's Registration Statement on Form S-4 (File No. 333-19795), and incorporated herein by reference). 5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered. 23.1 Consent of Ernst & Young LLP 23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1 hereto). 24.1 Power of Attorney (included on signature pages). Item 9. 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; (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; (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; Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration Statement is on Form S-3 or Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the 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 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. 5 (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 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) The undertaking concerning indemnification is as set forth under the response to Item 6. 6 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Rockville, State of Maryland on the 31st day of March, 1997. ORION NETWORK SYSTEMS, INC. BY: /s/ W. Neil Bauer ------------------------------- W. Neil Bauer President and Chief Executive Officer POWER OF ATTORNEY Know all Men by These Presents, that each individual whose signature appears below constitutes and appoints John G. Puente, W. Neil Bauer and David J. Frear, and each of them, his true and lawful attorney-in-fact and agent, with power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, 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 and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in- fact and agents, or any of them, or their, his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date /s/ W. Neil Bauer Chief Executive March 31, 1997 - -------------------------------------------- W. Neil Bauer, President Officer and Director (Principal Executive Officer) /s/ David J. Frear Chief Financial March 31, 1997 - -------------------------------------------- David J. Frear, Vice President Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) /s/ Gustave M. Hauser Director March 31, 1997 - -------------------------------------------- Gustave M. Hauser, Chairman 7 /s/ John V. Saeman Director March 31, 1997 - -------------------------------------------- John V. Saeman /s/ John G. Puente Director March 31, 1997 - -------------------------------------------- John G. Puente /s/ Richard J. Brekka Director March 31, 1997 - -------------------------------------------- Richard J. Brekka /s/ Warren B. French, Jr. Director March 31, 1997 Warren B. French, Jr. /s/ Sidney S. Kahn Director March 31, 1997 - -------------------------------------------- Sidney S. Kahn /s/ W. Anthony Rice Director March 31, 1997 - -------------------------------------------- W. Anthony Rice /s/ Robert M. Van Degna Director March 31, 1997 - -------------------------------------------- Robert M. Van Degna /s/ Barry Horowitz Director March 31, 1997 - -------------------------------------------- Barry Horowitz
8 EXHIBIT INDEX
Exhibit Number Description Page 4.1 Restated Certificate of Incorporation, as amended, of Registrant (filed as Exhibit * 3.1 to the Registrant's Registration Statement on Form 8-B filed with the Commission on January 31, 1997, and incorporated herein by reference). 4.2 Bylaws, as amended, of the Registrant (filed as Exhibit 3.2 to the Registrant's * Registration Statement on Form 8-B filed with the Commission on January 31, 1997, and incorporated herein by reference). 4.3 Form of Common Stock Certificate (filed as Exhibit 4.5 to the Registrant's * Registration Statement on Form S-4 (File No. 333-19795), and incorporated herein by reference). 4.4 Orion Network Systems, Inc. Non-Employee Director Stock Option Plan (filed as Exhibit * 10.43 to the Registrant's Registration Statement on Form S-4 (File No. 333-19795), and incorporated herein by reference). 5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered. 23.1 Consent of Ernst & Young LLP. 23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1 * hereto). 24.1 Power of Attorney (included on signature pages). *
EX-5.1 2 EXHIBIT 5.1 EXHIBIT 5.1 March 31, 1997 Board of Directors Orion Network Systems, Inc. 2440 Research Boulevard, Suite 400 Rockville, Maryland 20850 Gentlemen: This firm has acted as counsel to Orion Network Systems, Inc. (the "Company"), a Delaware corporation, in connection with its registration, pursuant to a registration statement on Form S-8 filed on or about the date hereof (the "Registration Statement"), of 380,000 shares (the "Shares") of common stock, par value $.01 per share, of the Company, issuable under the Orion Network Systems, Inc. Non-Employee Director Stock Option Plan (the "Plan"). This letter is furnished to you pursuant to the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in connection with such registration. For purposes of this opinion letter, we have examined copies of the following documents: 1. An executed copy of the Registration Statement. 2. A copy of the Plan, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 3. The Restated Certificate of Incorporation of the Company, as amended (the "Charter"), as certified by the Secretary of State of the State of Delaware on January 29, 1997 and by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. 4. The By-laws of the Company, as amended, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect. Board of Directors Orion Network Systems, Inc. March 31, 1997 Page 2 5. Resolutions and consents of the Board of Directors of the Company adopted on March 20, 1996 and March 12, 1997 as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect relating to, among other things, approval of the Plan. We have not, except as specifically identified above, made any independent review or investigation of factual or other matters, including the organization, existence, good standing, assets, business or affairs of the Company or its subsidiaries. In our examination of the aforesaid certificates, records, and documents, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity, accuracy and completeness of all documents submitted to us as originals, and the authenticity, accuracy and completeness and conformity with the original documents of all documents submitted to us as certified, telecopied, photostatic, or reproduced copies. We have assumed the authenticity and accuracy of the foregoing certifications of corporate officers, on which we are relying, and have made no independent investigations thereof. This opinion is given in the context of the foregoing. This opinion letter is based as to matters of law solely on the General Corporation Law of the State of Delaware. We express no opinion herein as to any other laws, statutes, regulations, or ordinances. Based upon, subject to, and limited by the foregoing, we are of the opinion that the Shares, when issued and delivered in the manner and on the terms contemplated in the Registration Statement and the Plan (with the Company having received the consideration therefor, the form of which is in accordance with applicable law), will be validly issued, fully paid and non-assessable by the Company. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing of the Registration Statement on the date of this letter, and should not be quoted in whole or in part or otherwise be referred to, nor be filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this firm. Board of Directors Orion Network Systems, Inc. March 31, 1997 Page 3 We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, HOGAN & HARTSON L.L.P. EX-23.2 3 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-xxxx) pertaining to the Orion Network Systems, Inc. Non-Employee Director Stock Option Plan of our report dated February 9, 1996, with respect to the consolidated financial statements of Orion Network Systems, Inc., a Delaware corporation that is now known as Orion Oldco Services, Inc. ("Orion Oldco"), included in Orion Oldco's Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Washington, D.C. March 24, 1997 -----END PRIVACY-ENHANCED MESSAGE-----