-----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, Brg3yXjNMh8usXV4VssQT0yCrhPxfgd5MmsLv+XmPDpevFAABR3LSOfnHXfEOOKO wewNvlna+v/T7WCHybFbNQ== 0000891554-99-002074.txt : 19991108 0000891554-99-002074.hdr.sgml : 19991108 ACCESSION NUMBER: 0000891554-99-002074 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19991105 EFFECTIVENESS DATE: 19991105 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RADYNE COMSTREAM INC CENTRAL INDEX KEY: 0000718573 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 112569467 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-90383 FILM NUMBER: 99741957 BUSINESS ADDRESS: STREET 1: 3138 EAST ELWOOD STREET CITY: PHOENIX STATE: AZ ZIP: 85034 BUSINESS PHONE: 6024379620 MAIL ADDRESS: STREET 1: 3138 EAST ELWOOD STREET CITY: PHOENIX STATE: AZ ZIP: 85034 FORMER COMPANY: FORMER CONFORMED NAME: RADYNE CORP DATE OF NAME CHANGE: 19920703 S-8 1 REGISTRATION STATEMENT 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) 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"). 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 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. II-2 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. II-3 (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 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 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 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 EX-4 2 1999 EMPLOYEE STOCK PURCHASE PLAN 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. (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. (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. 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. 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 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. 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. 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. EX-5 3 OPINION OF COUNSEL 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 ---------------------------------- 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 EX-23.(B) 4 INDEPENDENT AUDITORS' CONSENT 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 EX-23.(C) 5 INDEPENDENT AUDITORS' CONSENT 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 -----END PRIVACY-ENHANCED MESSAGE-----