As filed with the Securities and Exchange Commission on April 4, 2005
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 AND
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-4 ON
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GLOBIX CORPORATION
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(Exact Name of Registrant as Specified in its Charter)
Delaware 13-3781263
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
139 Centre Street
New York, NY 10013
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(Address of Principal Executive Offices) (Zip Code)
Globix Corporation 2003 Stock Option Plan
NEON Communications, Inc. 2003 Directors' Stock Option Plan
NEON Communications, Inc. Stock Incentive Plan
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(Full Title of the Plans)
Peter K. Stevenson
President and Chief Executive Officer
139 Centre Street
New York, NY 10013
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(Name and Address of Agent For Service)
(212) 334-8500
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(Telephone Number, Including Area Code, of Agent for Service)
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Copy to Bonnie J. Roe, Esq.
Day, Berry & Howard LLP
875 Third Avenue
New York, NY 10022
CALCULATION OF REGISTRATION FEE
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Title Of Securities Amount To Be Proposed Maximum Proposed Maximum Amount Of
To Be Registered Registered Offering Price Per Aggregate Registration Fee (2)
Share(2) Offering Price(2)
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Common Stock 4,381,319 shares (1) Not applicable $6,143,995.68 $723.15
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(1) Represents 2,552,319 shares of common stock of Globix ("Common Stock")
issuable upon exercise of outstanding options pursuant to the NEON
Communications, Inc. 2003 Directors' Stock Option Plan, as amended, and the NEON
Communications, Inc. Stock Incentive Plan, as amended, and up to 1,829,000
shares of Common Stock authorized for issuance under the Globix Corporation 2003
Stock Option Plan (the "Globix Plan"), all of which are being registered
hereunder. 1,089,744 shares of Common Stock authorized for issuance under the
Globix Plan are subject to outstanding options granted under the Globix Plan and
739,226 shares are available for future grants thereunder.
(2) The registration fee in respect of the shares relating to the NEON
Directors' Plan and the NEON Stock Incentive Plan was paid at the time of the
original filing of the Registration Statement on Form S-4 (No. 333-119666) to
which this post-effective amendment relates. Pursuant to Rules 457(c) and 457(h)
under the Securities Act of 1933, the calculation of the registration fee in
respect of the shares relating to the Globix Plan is based upon the actual
exercise price of certain options previously granted ($3.04 per share for
options to purchase 935,107 shares and $4.10 per share for options to purchase
151,667 shares of Common Stock) and a per share price of $3.61 which was the
average (rounded to the nearest penny) of the high and low sales prices of the
Common Stock on the three days preceding March 31, 2005, as reported on the Over
the Counter Bulletin Board, for other shares issuable under the Globix Plan.
EXPLANATORY NOTE
Globix Corporation ("Globix or the "Company") hereby (i) files this
Form S-8 for the purpose of registering shares of common stock (the "Common
Stock"), of Globix to be issued pursuant to the Globix Corporation 2003 Stock
Option Plan (the "Globix Plan") and (ii) amends its Registration Statement on
Form S-4 (No. 333-119666) by filing this Post Effective Amendment No. 1 on Form
S-8 for the purpose of registering shares of common stock issuable upon exercise
of outstanding options to purchase Common Stock pursuant to the NEON
Communications, Inc. 2003 Directors' Stock Option Plan, as amended (the "NEON
Directors' Plan") and the NEON Communications, Inc. Stock Incentive Plan, as
amended (the "NEON Stock Incentive Plan").
Globix became obligated to issue shares of Common Stock under the NEON
Directors' Plan and the NEON Stock Incentive Plan as a result of the merger of a
wholly owned subsidiary of Globix with and into NEON Communications, Inc.
("NEON") on March 7, 2005. In the merger, outstanding options to purchase shares
of Common Stock of NEON were converted into options to purchase 2,552,319 shares
of Common Stock of Globix.
The aggregate number of shares that may be issued under the Globix
Plan, the NEON Directors' Plan and the NEON Stock Incentive Plan is subject to
adjustment in the event of a stock dividend, stock split or similar change in
the outstanding shares of Common Stock.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by the Company are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K, filed with the
Commission on December 17, 2004 and subsequently amended (File
No. 001-14168).
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 2004.
(c) The Company's Form 8-K, filed with the Commission on February
17, 2005.
(d) The Company's Form 8-K, filed with the Commission on March 11,
2005.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment which indicates that
all shares of Common Stock offered have been sold, or which deregisters all
shares of Common Stock then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4 DESCRIPTION OF SECURITIES
This item is not applicable.
ITEM 5 INTERESTS OF NAMED EXPERTS AND COUNSEL
This item is not applicable.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is incorporated in Delaware and consequently is subject to
the Delaware General Corporation Law ("DGCL"). DGCL provides that the registrant
may indemnify officers and directors who are parties in actual or threatened
lawsuits and other proceedings against reasonable expenses, judgments,
penalties, fines and amounts paid in settlement, except for liability for: (i) a
breach of the duty of loyalty; (ii) acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law; (iii) payment of
an improper dividend or improper repurchase of stock under Section 174 of the
DGCL; or (iv) any transaction from which the director derived an improper
personal benefit.
The Company's Amended and Restated Certificate of Incorporation,
provides, in effect, that the Company shall indemnify its directors and officers
to the maximum extent permitted by the DGCL. The sixth and seventh articles of
the Amended and Restated Certificate of Incorporation of the Company provide as
follows:
"SIXTH, no director shall be personally liable to the Company
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability
or limitation thereof is not permitted under the DGCL as the same
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exists or may hereafter be amended. If the DGCL is amended hereafter to
authorize the further elimination or limitation of the liability of
directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent authorized by the DGCL, as
so amended. Any repeal or modification of this Article SIXTH shall not
adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
SEVENTH, the Company shall indemnify its directors and
officers to the fullest extent authorized or permitted by law, as now
or hereafter in effect, and such right to indemnification shall
continue as to a person who has ceased to be a director or officer of
the Company and shall inure to the benefit of his or her heirs,
executors and personal and legal representatives; PROVIDED, HOWEVER,
that, except for proceedings to enforce rights to indemnification, the
Company shall not be obligated to indemnify any director or officer (or
his or her heirs, executors or personal or legal representatives) in
connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to
by the Board of Directors. The right to indemnification conferred by
this Article SEVENTH shall include the right to be paid by the Company
the expenses incurred in defending or otherwise participating in any
proceeding in advance of its final disposition.
The Company may, to the extent authorized from time to time by
the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Company similar
to those conferred in this Article SEVENTH to directors and officers of
the Company.
The rights to indemnification and to the advance of expenses
conferred in this Article SEVENTH shall not be exclusive of any other
right which any person may have or hereafter acquire under this Amended
and Restated Certificate of Incorporation, the By-Laws of the Company,
any statute, agreement, vote of stockholders or disinterested directors
or otherwise.
Any repeal or modification of this Article SEVENTH shall not
adversely affect any rights to indemnification and to the advancement
of expenses of a director or officer of the Company existing at the
time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or modification."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
This item is not applicable to the securities registered hereby.
ITEM 8 EXHIBITS
The following exhibits are incorporated herein by reference as
indicated or filed herewith.
Exhibit No. Description
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5 Opinion of Day, Berry & Howard LLP as to the legality of the
securities registered hereby
10.1 Globix Corporation 2003 Stock Option Plan
10.2* NEON Communications, Inc. 2003 Directors' Stock Option Plan
10.3* NEON Communications, Inc. Stock Incentive Plan
10.4* First Amendment to NEON Communications, Inc. 2003 Directors'
Stock Option Plan
10.5* First Amendment to NEON Communications, Inc. Stock Incentive
Plan
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23.1 Consent of Amper, Politiziner & Mattia, P.C.
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Day, Berry & Howard LLP (included in Exhibit 5)
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* Incorporated by reference to the Company's Report on Form 8-K filed
on March 11, 2005.
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; 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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. 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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 of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on April 1, 2005.
Globix Corporation
By: /s/ Peter K. Stevenson
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Name: Peter K. Stevenson
Title: President and Chief Executive
Officer
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 date indicated.
Signature Title Date
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/s/ Peter K. Stevenson President, Chief Executive April 1, 2005
------------------------ Officer and Director
Peter K. Stevenson
/s/ Robert M. Dennerlein Chief Financial Officer April 1, 2005
------------------------ (principal financial and
Robert M. Dennerlein accounting officer)
/s/ Wayne Barr, Jr. Director April 1, 2005
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Wayne Barr, Jr.
/s/ Jose A. Cecin, Jr. Director April 1, 2005
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Jose A. Cecin, Jr.
/s/ Stephen E. Courter Director April 1, 2005
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Stephen E. Courter
/s/ John Forsgren Director April 1, 2005
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John Forsgren
/s/ Peter L. Herzig Director April 1, 2005
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Peter L. Herzig
/s/ Steven Lampe Director April 1, 2005
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Steven Lampe
/s/ Steven G. Singer Director April 1,2005
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Steven G. Singer
/s/ Raymond L. Steele Director April 1, 2005
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Raymond L. Steele
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