-----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, JZ4IG3RIJ7iph6PIOHw+a+i35BwV+jFLMjiNNq1b1l0KPF5BLgeU+xLjRkRDMoEE kdQx6/dOvaeDwBbyAVX14g== 0000950150-97-001392.txt : 19971007 0000950150-97-001392.hdr.sgml : 19971007 ACCESSION NUMBER: 0000950150-97-001392 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971006 EFFECTIVENESS DATE: 19971006 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: REMEC INC CENTRAL INDEX KEY: 0000769874 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 953814301 STATE OF INCORPORATION: CA FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-37191 FILM NUMBER: 97690922 BUSINESS ADDRESS: STREET 1: 9404 CHESAPEAKE DRIVE CITY: SAN DIEGO STATE: CA ZIP: 92123 BUSINESS PHONE: 6195601301 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on October 6, 1997 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 REMEC, INC. -------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) California 95-3814301 - ------------------------------- ------------------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 9404 Chesapeake Drive, San Diego, California 92123 ---------------------------------------------------- (Address of Principal Executive Offices) Equity Incentive Plan Employee Stock Purchase Plan ------------------------------ (Full Title of the Plan) Ronald E. Ragland, Chairman of the Board and Chief Executive Officer 9404 Chesapeake Drive San Diego, California 92123 ---------------------------------------------------------------------- (Name and Address of Agent For Service) (619) 560-1301 --------------------------------------------------------------- (Telephone number, including area code, of agent for service) Copy to: Victor A. Hebert, Esq. Heller Ehrman White & McAuliffe 333 Bush Avenue San Francisco, California 94104 (415) 772-6000 2
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 (1)(2) share (3) price fee - ---------------------------------------------------------------------------------------------------------------------- Common Stock, par value $.01 3,075,000 $35.75 $109,931,250 $33,312.50 ======================================================================================================================
(1) The shares covered by this Registration Statement represent the shares of Common Stock which have become available for issuance under the Registrant's Equity Incentive Plan and Employee Stock Purchase Plan as a result of amendments to such plans approved by the stockholders at the Registrant's Annual Meeting of Stockholders held on June 6, 1997. (2) Includes an indeterminate number of additional shares that may be issued to adjust the number of shares issued pursuant to such employee benefit plans as the result of any future stock split, stock dividend or similar adjustment of the Registrant's outstanding common stock. (3) Estimated solely for the purpose of computing the amount of registration fee pursuant to Rule 457(c) under the Securities Act, as amended, based on the last sale reported of the Registrant's Common Stock on the Nasdaq National Market on October 2, 1997. -2- 3 STATEMENT UNDER GENERAL INSTRUCTION E REGISTRATION OF ADDITIONAL SECURITIES Unless otherwise noted herein, the contents of the Registrant's Form S-8 Registration Statement (File No. 333-4224) is incorporated by reference into this Registration Statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed or to be filed with the Securities and Exchange Commission (the "Commission") by the registrant are incorporated by reference in this registration statement: (a) The registrant's latest annual report (Form 10-K) filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act") that contains audited financial statements for the registrant's latest fiscal year for which such statements have been filed; (b) All other fiscal reports filed by the registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the annual report or prospectus referred to (a) above; and (c) The description of the Common Stock of the registrant contained in the registration statement filed under the Exchange Act registering such Common Stock under Section 12 of the Exchange Act. All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold should be deemed to be incorporated by reference in this registration statement and to be part thereof from the date of filing of such documents. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The registrant has the power to indemnify its officers and directors against liability for certain acts pursuant to Section 317 of the California Corporations Code. Articles Fourth and Fifth of the registrant's Restated Articles of Incorporation provide as follows: "Fourth: The liability of directors of this Corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. -3- 4 "Fifth: This Corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations Code) for breach of duty to this Corporation and its shareholders through bylaw provisions, or through agreements with the agents, or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, subject to the limits on such excess indemnification set forth in Section 204 of the Code." In addition, Article V of the registrant's Bylaws provides that the registrant shall indemnify its directors and executive officers to the fullest extent not prohibited by California Corporations Code and provides for the advancement of expenses upon a receipt of an undertaking to repay such amounts if the person is determined ultimately not to be entitled to indemnification. The registrant has entered into Indemnification Agreements with its officers and directors. ITEM 8. EXHIBITS 5 Opinion of Heller Ehrman White & McAuliffe 23.1 Consent of Heller Ehrman White & McAuliffe (filed as part of Exhibit 5) 23.2 Consent of Ernst & Young LLP, Independent Auditors 24 Power of Attorney (see pages 5 and 6) ITEM 9. UNDERTAKINGS A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; -4- 5 provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registrations 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 purposes of determining liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed 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 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 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -5- 6 SIGNATURES 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 on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in San Diego, State of California, on October 3, 1997. REMEC, INC. By: /s/ RONALD E. RAGLAND ---------------------------------------- Ronald E. Ragland, Chairman of the Board and Chief Executive Officer POWER OF ATTORNEY TO SIGN AMENDMENTS KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Errol Ekaireb and Thomas A. George, or either of them, with full power of substitution, such person's true and lawful attorneys-in-fact and agents for such person in such person's name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully, to all intents and purposes, as he or such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated. /s/ RONALD E. RAGLAND Chairman of the Board, October 3, 1997 - ---------------------------------- and Chief Executive Ronald E. Ragland Officer and Director (Principal Executive Officer) /s/ ERROL EKAIREB President and Chief October 3, 1997 - ---------------------------------- Operating Officer and Errol Ekaireb Director /s/ THOMAS A. GEORGE Chief Financial Officer, October 3, 1997 - ---------------------------------- Senior Vice President, Thomas A. George and Secretary (Principal Financial and Accounting Officer)
-6- 7 /s/ JACK A. GILES Executive Vice President, October 3, 1997 - ---------------------------------- President of REMEC Jack A. Giles Microwave Division and Director /s/ DENNY MORGAN Senior Vice President, October 3, 1997 - ---------------------------------- Chief Engineer and Denny Morgan Director /s/ JOSEPH T. LEE Executive Vice President October 3, 1997 - ---------------------------------- and Director Joseph T. Lee /s/ THOMAS A. CORCORAN Director October 3, 1997 - ---------------------------------- Thomas A. Corcoran /s/ WILLIAM H. GIBBS Director October 3, 1997 - ---------------------------------- William H. Gibbs /s/ ANDRE R. HORN Director October 3, 1997 - ---------------------------------- Andre R. Horn /s/ GARY L. LUICK Director October 3, 1997 - ---------------------------------- Gary L. Luick Director October __, 1997 - ---------------------------------- Jeffrey M. Nash
-7- 8 Index to Exhibits -----------------
Sequentially Item No. Description of Item Numbered Page - -------- ------------------- ------------- 5 Opinion of Heller Ehrman White & McAuliffe 9 23.1 Consent of Heller Ehrman White & McAuliffe (filed as part of Exhibit 5) 23.2 Consent of Ernst & Young LLP, Independent Auditors 12 24 Power of Attorney (see pages 6 and 7)
-8- EX-5 2 OPINION OF HELLER EHRMAN WHITE & MCAULIFFE 1 EXHIBIT 5 October 3, 1997 REMEC, Inc. 9404 Chesapeake Drive San Diego, California 92123 Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We have acted as counsel to REMEC, Inc., a California corporation (the "Company"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") which the Company proposes to file with the Securities and Exchange Commission on or about October 3, 1997 for the purpose of registering under the Securities Act of 1933, as amended, an additional aggregate of 3,075,000 shares of its $.01 par value Common Stock (the "Shares"). Of the Shares 2,250,000 are issuable under the Company's Equity Incentive Plan and 825,000 are issuable under the Company's Employee Stock Purchase Plan. The Shares have become available for issuance under the Company's Equity Incentive Plan and the Company's Employee Stock Purchase Plan (jointly referred to herein as the "Plans") as a result of amendments to such Plans approved by the Company's stockholders at the Company's Annual Meeting of Stockholders held on June 6, 1997. In connection with this opinion, we have assumed the authenticity of all records, documents and instruments submitted to us as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals of all records, documents and instruments submitted to us as copies. We have based our opinion upon our review of the following records, documents, instruments and certificates and such additional certificates relating to factual matters as we have deemed necessary or appropriate for our opinion: (a) The Articles of Incorporation of the Company certified by the Secretary of State of the State of California as of June 25, 1997 and certified to us by an officer of the Company as being complete and in full force and effect as of the date of this opinion; 2 REMEC, Inc. October 3, 1997 Page 2 (b) The Bylaws of the Company certified to us by an officer of the Company as being complete and in full force and effect as of the date of this opinion; (c) A Certificate of the Chief Financial Officer of the Company (i) attaching records certified to us as constituting all records of proceedings and actions of the Board of Directors and shareholders of the Company relating to the Plans and the Registration Statement, and (ii) certifying as to certain other factual matters; (d) The Registration Statement; (e) The Plans; and (f) A Certificate of ChaseMellon Shareholder Services, the Company's transfer agent, dated October 1, 1997 as to certain factual matters. This opinion is limited to the federal laws of the United States of America and the law of the State of California, and we disclaim any opinion as to the laws of any other jurisdiction. We further disclaim any opinion as to any statute, rule, regulation, ordinance, order or other promulgation of any other jurisdiction or any regional or local governmental body or as to any related judicial or administrative opinion. Based upon the foregoing and our examination of such questions of law as we have deemed necessary or appropriate for the purpose of this opinion, and assuming that (i) the Registration Statement becomes and remains effective during the entire period when the Shares are offered and sold, (ii) appropriate certificates evidencing the Shares will be executed and delivered upon issuance of the Shares, (iii) the full consideration stated in the Plans is paid for each Share, and (iv) all applicable securities laws are complied with, it is our opinion that, when issued by the Company, after payment therefor in the manner provided in the Plans, the Shares will be legally issued, fully paid and nonassessable. This opinion is rendered to you in connection with the Registration Statement and is solely for your benefit. This opinion may not be relied upon by you for any other purpose, or relied upon by any other person, firm, corporation or other entity without our prior written consent. We disclaim any obligation to advise you of any change of law that occurs, or any facts of which we become aware, after the date of this opinion. 3 REMEC, Inc. October 3, 1997 Page 3 We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, \S\ HELLER EHRMAN WHITE & MCAULIFFE EX-23.2 3 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS 1 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Equity Incentive Plan and Employee Stock Purchase Plan of REMEC, Inc. of our report dated February 24, 1997, except for the first paragraph of Note 2, as to which the date is February 28, 1997, with respect to the consolidated financial statements of REMEC, Inc. included in its Annual Report (Form 10-K/A) for the year ended January 31, 1997 and the related financial statement schedule included therein, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP San Diego, California October 3, 1997 -----END PRIVACY-ENHANCED MESSAGE-----