COMTECH TELECOMMUNICATIONS CORP /DE/ — Registration Form 2007

Jun 6, 2007

S-8 1 d71940_s-8.htm REGISTRATION STATEMENT

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549

FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

COMTECH TELECOMMUNICATIONS CORP. (Exact name of registrant as specified in its charter)

Delaware	11-2139466
(State
or other jurisdiction of incorporation or organization)	(I.R.S.
Employer Identification Number)

68 South Service Road, Suite 230 Melville, New York 11747 (Address of principal executive offices) (Zip code)

COMTECH TELECOMMUNICATIONS CORP. 2000 STOCK INCENTIVE PLAN Amended and Restated (Effective as of October 9, 2006) (Full title of the plan)

Mr. Fred Kornberg Comtech Telecommunications Corp. 68 South Service Road, Suite 230 Melville, New York 11747 (631) 962-7000 (Name, address including zip code, and telephone number, including area code, of agent for service)

Copies of all communications to: Robert A. Cantone, Esq. Proskauer Rose LLP 1585 Broadway New York, New York 10036 (212) 969-3235

CALCULATION OF REGISTRATION FEE

Title of Securities To Be Registered	Amount To Be Registered (1)	Proposed Maximum Offering Price Per Share (2)	Proposed Maximum Aggregate Offering Price (2)	Amount Of Registration Fee (3)
Common Stock, par value $.10 per share	1,500,000
shares	$44.89	$66,420,000.00	$2,067.18

(1) Represents the additional number of shares of common stock, par value $.10 (the “Common Stock”), of Comtech Telecommunications Corp. (the “Registrant”) issuable under the Comtech Telecommunications Corp. 2000 Stock Incentive Plan, Amended and Restated (Effective as of October 9, 2006) (the “Plan”). Also includes an aggregate of 1,500,000 preferred stock purchase rights attached to the shares of Common Stock pursuant to the Rights Agreement, dated as of December 15, 1998, between the Registrant and the American Stock Transfer and Trust Company, as Rights Agent.

| | Pursuant to Rule 416
promulgated under the Securities Act of 1933, as amended (the “Securities
Act”) this Registration Statement also registers such additional shares of
Common Stock and preferred stock purchase rights as may be offered or issued
under the Plan to prevent dilution resulting from stock splits, stock
dividends or similar transactions. |
| --- | --- |
| (2) | Estimated
solely for the purpose of calculating the amount of the registration fee,
pursuant to Rules 457(c) and 457(h)(1) under the Securities Act, on the basis
of the high and low sale prices of the Registrant’s Common Stock as reported
by the NASDAQ Stock Market LLC on May 31, 2007. |
| (3) | Pursuant to
General Instruction E to Form S-8, a filing fee is only being paid with
respect to the registration of additional securities for the Plan. The existing securities under the Plan
were registered, and the correlating filing fee paid, pursuant to the
Registrant’s Registration Statement on Form S-8 filed on December 12, 2000
(Registration No. 333-51708) and the post-effective amendments to such
Registration Statement filed on January 18, 2002 and October 22, 2003, and
the Registration Statement of Form S-8 filed on June 8, 2005 (Registration
No. 333-125625). |

Explanatory Note

This Registration Statement on Form S-8 registers additional securities of the same class as other securities for which a registration statement on Form S-8 relating to the Comtech Telecommunications Corp. 2000 Stock Incentive Plan is effective. Accordingly, pursuant to General Instruction E to Form S-8, Comtech Telecommunications Corp. (the “Registrant”) hereby incorporates by reference the contents of Registration Statement on Form S-8 (Registration No. 333-51708), as amended (the “Prior Registration Statement”), and hereby deems such Prior Registration Statement to be a part hereof, except as otherwise updated or modified by this Registration Statement.

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PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3 . Incorporation of Documents By Reference .

The Registrant incorporates by reference into this Registration Statement the contents of the Prior Registration Statement and the following documents filed with the Commission (excluding any portions of such documentation that have been “furnished” but not “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)):

| (1) | the Registrant’s Annual
Report on Form 10-K for the fiscal year ended July 31, 2006, filed with the
Commission on September 20, 2006; |
| --- | --- |
| (2) | the Registrant’s Quarterly
Report on Form 10-Q for the fiscal quarter ended October 31, 2006, filed with
the Commission on December 4, 2006; the Registrant’s amended Quarterly Report
on Form 10-Q/A for the fiscal quarter ended October 31, 2006, filed with the
Commission on December 18, 2006; and the Registrant’s Quarterly Report on
Form 10-Q for the fiscal quarter ended January 31, 2007, filed with the
Commission on March 8, 2007; |
| (3) | the Registrant’s Current
Reports on Form 8-K dated August 3, 2006, filed with the Commission on August
8, 2006; dated September 19, 2006, filed with the Commission on September 20,
2006; dated October 9, 2006, filed with the Commission on October 12, 2006;
dated December 5, 2006, filed with the Commission on December 11, 2006; and
the information “filed” under Items 5.02 (d) and (e) of the Form 8-K dated
March 7, 2007, filed with the Commission on March 8, 2007; |
| (4) | the description of the
Registrant’s common stock, $.10 par value (the “Common Stock”) contained in
the Registrant’s Registration Statement on Form 8-A, filed with the
Commission on November 22, 1974, as amended by the Registrant’s Current
Report on Form 8-K, filed with the Commission on December 11, 2000; |
| (5) | the description of the
Registrant’s preferred stock, $0.10 par value, contained in the Registrant’s
Registration Statement on Form 8-A, filed with the Commission on December 22,
1998, as amended by the Registrant’s Amended Registration Statement on Form
8-A/A, filed with the Commission on December 23, 1998; and |
| (6) | all documents subsequently
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act, after the date of this registration statement and 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. |

Any statement contained in this Registration Statement or 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.

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Item 4 . Description of Securities .

Not Applicable.

Item 5 . Interests of Named Experts and Counsel .

The validity of the shares of Common Stock offered hereby will be passed upon for the Registrant by the law firm of Proskauer Rose LLP, 1585 Broadway, New York, New York 10036. Richard L. Goldberg, a member of the Registrant’s Board of Directors, is a partner in said firm.

Item 6 . Indemnification of Directors and Officers .

As permitted under the Delaware General Corporation Law (“DGCL”) of the State of Delaware, Article VII of the Registrant’s Amended and Restated Certificate of Incorporation contains the following provisions regarding indemnification of directors and officers:

| Section 1.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer or employee of the Corporation, or
is or was serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines
and amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not,
of itself, create a presumption that the person did not act in good faith and
in a manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful. |
| --- |
| Section 2.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer or employee
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper. |

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| Section 3.
To the extent that a director, officer or employee of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article VII, or in defense
of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by him
in connection therewith. |
| --- |
| Section 4.
Any indemnification under Sections 1 and 2 of this Article VII (unless
ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the director,
officer or employee is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Sections 1 and 2. Such
determination shall be made (1) by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to such action, suit
or proceeding, or (2) if such quorum is not obtainable, or, even if obtainable
a quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or (3) by the stockholders. |
| Section 5.
Expenses incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding, or threat thereof, may be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer or
employee to repay such amount unless it shall ultimately be determined that
he is entitled to be indemnified by the Corporation as authorized in this
Article VII. |
| Section 6.
The indemnification provided by this Article VII shall not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled
under any By-Law, agreement, vote of stockholders or disinterested directors,
statute, court decision, insurance policy or otherwise, now or hereafter in
effect, and shall continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of the heirs, executors
and administrators of such a person. |
| Section 7.
The Corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer or employee of the Corporation, or is or
was serving at the request of the Corporation as a director, officer or
employee of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of this Article VII or of the DGCL. |
| Section 8. For purposes of this Article VII, references to “other
enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to “serving at the request of the
Corporation” shall include any service as a director, officer or employee of
the Corporation which imposes duties on, or involves services by, such
director, officer or employee with respect to any employee benefit plan, its
participants or beneficiaries; and a person who acting in good faith and in a
manner he reasonably believes to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner “not opposed to the best interests of the Corporation” as referred to
in this Article VII. |
| On March 7, 2007, the Board of Directors approved and authorized the
Registrant to enter into agreements with each of its non-employee directors,
its principal executive officer, principal financial officer, other named
executive officers and other corporate officers, pursuant to which |

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the directors and such officers shall be entitled to be indemnified by the Registrant, to the extent permitted by the General Corporation Law of the State of Delaware, against liabilities incurred in the performance of their duties, subject to certain exceptions. The foregoing description of such agreements does not purport to be complete and is qualified in its entirety by reference to the form of Indemnification Agreement, a copy of which is filed as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed March 8, 2007 and incorporated herein by reference.

Item 7 . Exemption from Registration Claimed .

Not Applicable.

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Item 8 .	Exhibits .
*5	Opinion of
Proskauer Rose LLP
*23.1	Consent of
KPMG LLP
*23.2	Consent of
Proskauer Rose LLP (included in their opinion filed as Exhibit 5)
*24	Power of
Attorney (included on the Signature Page to this Registration Statement)

• Filed herewith.

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 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 volume and price
represent no more than 20% 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 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) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished
to the Commission by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are
incorporated by reference in this 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. |

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| (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. |
| --- |
| (4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser: |

| (i) If the Registrant is relying on Rule 430B: |
| --- |
| (A) Each prospectus filed by the Registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration
statement; and |
| (B) Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in this
registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the Registrant and any person that is at
that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of this registration statement or made
in a document incorporated or deemed incorporated by reference into this
registration statement or prospectus that is part of this registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of this registration
statement or made in any such document immediately prior to such effective
date; or |
| (ii) If the Registrant is subject to Rule 430C, each prospectus filed
pursuant to Rule 424(b) as part of a registration statement relating to an
offering, other than registration statements relying on Rule 430B or other
than prospectuses filed in reliance on Rule 430A, shall be deemed to be part
of and included in the registration statement as of the date it is first used
after effectiveness. Provided, however, that no statement made in a
registration statement or prospectus that is part of this registration
statement or made in a document incorporated or deemed incorporated by
reference into this registration statement or prospectus that is part of this
registration statement will, as to a purchaser with a time of contract of
sale prior to such first use, supersede or modify any statement that was made
in the registration statement or prospectus that was part of this
registration statement or made in any such document immediately prior to such
date of first use. |

| (5) That, for the purpose of determining liability of the Registrant
under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities: |
| --- |
| The Registrant undertakes that in a primary offering of securities of
the Registrant pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by |

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| means of any of the following communications, the Registrant will be
a seller to the purchaser and will be considered to offer or sell such
securities to such purchaser: |
| --- |
| (i) Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to Rule
424; |
| (ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the Registrant or used or referred to by the undersigned
Registrant; |
| (iii) The portion of any other free writing prospectus relating to
the offering containing material information about the Registrant or its
securities provided by or on behalf of the undersigned Registrant; and |
| (iv) Any other communication that is an offer in the offering made by
the undersigned Registrant to the purchaser. |

(b) The 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) 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 indemnification provisions described in Item 6 above 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 hereby, 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

The Registrant. Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Melville, State of New York, on June 5, 2007.

| COMTECH TELECOMMUNICATIONS
CORP. | |
| --- | --- |
| By | /s/ Fred
Kornberg |
| | Fred Kornberg |
| | Chairman of
the Board, Chief Executive Officer and President |

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in their respective capacities and on the respective dates set forth opposite their names. Each person whose signature appears below hereby authorizes Fred Kornberg and Michael D. Porcelain, and each of them, with full power of substitution, to execute in the name and on behalf of such person any amendment or any post-effective amendment to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith, making such changes in this Registration Statement as the Registrant deems appropriate, and appoints Fred Kornberg and Michael D. Porcelain, and each of them, with full power of substitution, attorneys-in-fact to sign any amendment and any post-effective amendment to this Registration Statement and to file the same, with exhibits thereto, and other documents in connection therewith.

Signature	Capacity	Date
/s/ Fred
Kornberg	Chairman of the Board,	June
5, 2007
	Chief Executive Officer
and President
Fred Kornberg	(Principal Executive
Officer)
/s/ Michael D.
Porcelain	Senior Vice President	June
5, 2007
	and Chief Financial
Officer
Michael D. Porcelain	(Principal Financial and
Accounting Officer)
/s/ Richard L.
Goldberg	Director	June
5, 2007
Richard L. Goldberg
/s/ Edwin
Kantor	Director	June
5, 2007
Edwin Kantor
/s/ Ira
Kaplan	Director	June
5, 2007
Ira Kaplan
/s/ Gerard R.
Nocita	Director	June
5, 2007
Gerard R. Nocita
/s/ Robert G.
Paul	Director	June
5, 2007
Robert G. Paul

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