AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 2004
Registration No. 333-119666
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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GLOBIX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 13-3781263
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
7389
(Primary Standard Industrial
Classification Code Number)
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139 CENTRE STREET
NEW YORK, NEW YORK 10013
(212) 334-8500
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
PETER K. STEVENSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
GLOBIX CORPORATION
139 CENTRE STREET
NEW YORK, NEW YORK 10013
(212) 334-8500
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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COPIES TO:
BONNIE J. ROE, ESQ. MELINDA BRUNGER, ESQ.
DAY, BERRY & HOWARD LLP ANDREWS KURTH LLP
875 THIRD AVENUE 600 TRAVIS, SUITE 4200
NEW YORK, NY 10022 HOUSTON, TX 77002
TELEPHONE: (212) 829-3600 TELEPHONE: (713) 220-4200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after this Registration Statement becomes effective and all
other conditions to the merger described in the joint proxy statement/prospectus
have been satisfied or waived.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act of 1933 registration statement number of the
earlier effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. |_|
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
EXPLANATORY NOTE
The sole purpose of the Amendment is to file Exhibits 8.1 and 8.2 to
the Registration Statement. Accordingly, this Amendment consists only of the
facing page, this explanatory note and Part II of the Registration Statement.
The Prospectus and Financial Statement Schedules are unchanged and have been
omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, or DGCL, empowers
a corporation to 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
or she was or is a director, officer, employee or agent of the corporation, or
was or is serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding if the person identified acted in good faith and in a manner he or
she 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 or her conduct was unlawful. Section 145 of the
DGCL further empowers a corporation to 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 or she was or is a director,
officer, employee or agent of the corporation, or was or is serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement of
such action or suit if the person identified acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification may be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine that despite the adjudication of
liability such person is fairly and reasonably entitled to indemnity for such
expenses that the court shall deem proper. Section 145 further provides that to
the extent a director or officer of a corporation has been successful in the
defense of any action, suit or proceeding referred to above or in the defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith. The statute provides that indemnification pursuant
to its provisions is not exclusive of other rights of indemnification to which a
person may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
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Our Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws, provide, in effect, that to the full extent and under the
circumstances permitted by Section 145 of the DGCL, we shall indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit or proceeding of the type described above by reason of the fact that he or
she was or is a director, officer, employee or agent of our company.
Our Amended and Restated Certificate of Incorporation relieves our
directors from monetary damages to our company or our stockholders for breach of
such director's fiduciary duty as a director to the fullest extent permitted by
the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its
directors from personal liability to such corporation or its stockholders for
monetary damages for any breach of their fiduciary duty as directors except (i)
for any breach of the director's duty of loyalty to our company or our
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) under Section 174 of
the DGCL or (iv) for any transaction from which the director derived an improper
personal benefit.
In addition, we carry an insurance policy for the protection of our
directors and executive officers against any liability asserted against them in
their official capacities.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
EXHIBIT NO. EXHIBIT DESCRIPTION
2.1 Agreement and Plan of Merger dated as of July 19, 2004
by and between Globix Corporation and NEON
Communications, Inc. (included as Appendix A-1 to the
joint proxy statement/prospectus forming a part of this
Registration Statement)*
2.2 First Amendment to Agreement and Plan of Merger dated as
of October 8, 2004 by and between Globix Corporation and
NEON Communications, Inc. (included as Appendix A-2 to
the joint proxy statement/prospectus forming a part of
this Registration Statement)*
2.3 Amended Joint Prepackaged Plan of Globix and certain of
the Globix's subsidiaries, dated April 8, 2002 (3)
2.4 Form of Securities Exchange Agreement, dated September
15, 2004 (4)
3.1 Amended and Restated Certificate of Incorporation of
Globix (5)
3.2 Amended and Restated Bylaws of Globix (5)
3.3 Certificate of Amendment to Amended and Restated
Certificate of Incorporation of NEON (included as
Appendix B-1 to the joint proxy statement/prospectus
forming a part of this Registration Statement)*
3.4 Certificate of Amendment to Certificate of Designation
of Preferences and Relative, Participating, Optional and
Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions Thereof of
12% Series A Cumulative Convertible Preferred Stock of
NEON (included as Appendix B-2 to the joint proxy
statement/prospectus forming a part of this Registration
Statement)*
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3.5 Section 262 of the Delaware General Corporation Law
(included as Appendix C to the joint proxy
statement/prospectus forming a part of this Registration
Statement)*
4.1 Indenture, dated as of April 23, 2002, between Globix,
as issuer, the Subsidiary Guarantors of Globix named
therein and HSBC Bank USA, as trustee, relating to the
11% senior notes due 2008 (5)
4.2 Form of Pledge and Security Agreement, dated as of April
23, 2002, between each Subsidiary Guarantor of Globix
and HSBC Bank USA, as Collateral Agent/Trustee (5)
4.3 Form of Warrant issued to affiliates of Communication
Technology Advisors (6)
5 Opinion of Day, Berry & Howard LLP as to the validity of
the shares of common stock and preferred stock*
8.1 Opinion of Day, Berry & Howard LLP regarding certain tax
aspects of the merger
8.2 Opinion of Andrews Kurth LLP regarding certain tax
aspects of the merger
10.1 Purchase Agreement between Young Woo and Globix, dated
as of June 2, 1998 **(1)
10.4 Employment Agreement between Peter L. Herzig and Globix,
dated as of October 2, 2001 (2)
10.8 Consulting Agreement, dated as of April 19, 2002,
between Globix and Communication Technology Advisors LLC
(6)
10.9 Agreement between Globix and Communication Technology
Advisors, dated as of November 1, 2002 (6)
10.10 Agreement between Globix and Communication Technology
Advisors, dated as of February 1, 2003 (6)
10.11 Registration Rights Agreement between Globix and the
holders of Globix's securities party thereto, dated as
of April 23, 2002 (6)
10.12 Employment Agreement between Globix and Peter K.
Stevenson, dated as of April 15, 2002 (6)
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10.14 Letter Agreement between Globix and H. Jameson Holcombe,
dated July 15, 2002 (6)
10.15 Amendment, dated as of August 1, 2003, to the Employment
Agreement between Globix and Peter K. Stevenson (7)
10.16 Contract of Sale, dated as of October 10, 2003, between
Globix and Heritage Partners LLC (7)
12 Computation of Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends*
16 Letter re: Change in Certifying Accountant (8)
21 List of Subsidiaries (7)
23.1 Consent of PricewaterhouseCoopers LLP*
23.2 Consent of Amper, Politziner & Mattia PC*
23.3 Consent of BDO Seidman, LLP, independent registered
public accounting firm*
23.4 Consent of Day, Berry & Howard LLP (included in Exhibit
5 and Exhibit 8.1).
23.5 Consent of Andrews Kurth LLP (included in Exhibit 8.2)
24.1 Powers of Attorney (see signature page)
99.1 Form of Proxy Card for Globix*
99.2 Form of Proxy Card for NEON*
99.3 Opinion of Needham & Company, Inc. (included as Appendix
D to the joint proxy statement/prospectus forming a part
of this Registration Statement)*
99.4 Opinion of Adams Harkness, Inc.(f/k/a Adams, Harkness &
Hill, Inc.) (included as Appendix E to the joint proxy
statement/prospectus forming a part of this Registration
Statement)*
99.5 Affirmation Letter of Adams Harkness, Inc. (f/k/a Adams,
Harkness & Hill, Inc.) (included as Appendix F to the
joint proxy statement/prospectus forming a part of this
Registration Statement)*
99.6 Consent of Needham & Company, Inc.*
99.7 Consent of Adams Harkness, Inc. (f/k/a Adams, Harkness &
Hill, Inc.)*
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* Previously filed.
** Confidential treatment granted for certain portions of
this Exhibit pursuant to Rule 406 promulgated under the
Securities Act of 1933.
(1) Incorporated by reference to the Company's Report on
Form 8-K/A filed on September 18, 1998.
(2) Incorporated by reference to the Company's Annual Report
on Form 10-K filed on December 31, 2001.
(3) Incorporated by reference to the Company's Current
Report on Form 8-K filed on April 23, 2002.
(4) Incorporated by reference to the Company's Current
Report on Form 8-K filed on October 13, 2004.
(5) Incorporated by reference to the Company's Quarterly
Report on Form 10-Q filed on May 15, 2002.
(6) Incorporated by reference to the Company's Annual Report
on Form 10-K filed on March 26, 2003.
(7) Incorporated by reference to the Company's Annual Report
on Form 10-K filed on December 18, 2003.
(8) Incorporated by reference to the Company's Report on
Form 8-K filed on September 19, 2003.
(b) Financial Statement Schedules.
(c) N/A
ITEM 22. 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;
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(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 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 Securities and Exchange
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than a 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;
(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; and
(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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the 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 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.
(b) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(c) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
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(d) That prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration statement, by
any person or party who is deemed to be an underwriter within the meaning of
Rule 145(c), the Registrant undertakes that such reoffering prospectus will
contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form; and
(e) That every prospectus (a) that is filed pursuant to the immediately
preceding paragraph, or (b) that purports to meet the requirements of Section
10(a)(3) of the Securities Act of 1933 and is used in connection with an
offering of securities subject to the Rule 415, will be filed as part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this amendment no. 2 registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Date: December 17, 2004 GLOBIX CORPORATION
By: /s/ Peter K. Stevenson
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Peter K. Stevenson
President, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
amendment no. 2 registration statement has been signed by the following persons
in the capacities and on the dates indicated:
/s/ Peter K. Stevenson
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Peter K. Stevenson
President, Chief Executive Officer
and Director
(principal executive officer)
Date: December 17, 2004
/s/ Robert M. Dennerlein
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Robert M. Dennerlein
Chief Financial Officer
(principal financial and accounting
officer)
Date: December 17, 2004
/s/ Peter S. Brodsky*
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Peter S. Brodsky
Director
Date: December 17, 2004
/s/ Peter L. Herzig*
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Peter L. Herzig
Director
Date: December 17, 2004
/s/ Steven Lampe*
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Steven Lampe
Director
Date: December 17, 2004
/s/ Steven G. Singer*
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Steven G. Singer
Director
Date: December 17, 2004
/s/ Raymond L. Steele*
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Raymond L. Steele
Director
Date: December 17, 2004
/s/ Steven A. Van Dyke*
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Steven A. Van Dyke
Director
Date: December 17, 2004
*By: /s/ Robert M. Dennerlein
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Robert M. Dennerlein,
Attorney-in-fact