As filed with the Securities and Exchange Commission on June 21, 2000
Registration No. 333-24477
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 2
to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
PERFORMANCE TECHNOLOGIES, INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 16-1158413
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
315 Science Parkway
Rochester, New York 14620
(716) 256-0200
(Address, including zip code, and telephone
number, including area code, of
Registrant's principal executive
offices)
Performance Technologies, Incorporated
Amended and Restated Stock Option Plan
(Full title of the Plan)
Donald L. Turrell
Chief Executive Officer
Performance Technologies, Incorporated
315 Science Parkway
Rochester, New York 14620
(716) 256-0200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Offering Registration
be Registered Registered per share(1) Price (1) Fee
============== ============ ================ ================== ============
Common Stock, 500,000 $9.2505 $4,625,250 $1,286
par value $.01
per share
(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) of the Securities Act of 1933
and based on the high and low prices of the Registrant's Common Stock, par value
$.01 per share, as reported on the Nasdaq National Market System on June 15,
2000.
In addition, pursuant to Rule 416(c) of the Securities Act of 1933,
as amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the stock option plan described
herein.
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to an amendment to the
Performance Technologies, Incorporated Amended and Restated Stock Option Plan
that increased the number of shares of common stock, par value $.01 per share
(the "Common Stock"), to be issued thereunder by 500,000 shares. The contents of
the Company's Registration Statement on Form S-8 (File No. 333-24477), filed
with the Securities and Exchange Commission ("SEC") on April 3, 1997, as amended
by Amendment No. 1 to Form S-8, filed with the SEC on July 25, 1997, are hereby
incorporated by reference pursuant to Instruction E to Form S-8. Also pursuant
to Instruction E to Form S-8, the filing fee is being paid only with respect to
the 500,000 shares of Common Stock not previously registered.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents of the Registrant previously filed with the
Securities and Exchange Commission are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999; and
(b) the description of the Registrant's Common Stock, par value $.01 per
share, contained in Item 1 of the Registrant's Registration Statement on Form
8-A (Registration No. 0-27460), filed with the Securities and Exchange
Commission on December 28, 1995.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (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) 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.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
With respect to indemnification of directors and officers, Section 145
of the Delaware General Corporation Law ("DGCL") provides that a corporation
shall have the power 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 the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent 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 the person in connection with such action, suit or proceeding, if
the person acted in good faith and in a manner the person 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 the
person's conduct was unlawful. Under this provision of the DGCL, 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 the
person 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 the person's conduct was unlawful.
<PAGE>
Furthermore, the DGCL provides that a corporation shall have the power
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
the person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person 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 to the corporation unless and only to the extent that the Court of
Chancery 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.
The Company's Restated Certificate of Incorporation (the "Certificate of
Incorporation") and By-laws, as amended (the "By-laws") provide for limitation
of the liability of directors to the Company and its stockholders and for
indemnification of directors, officers, employees and agents of the Company,
respectively, to the maximum extent permitted by the DGCL.
The Certificate of Incorporation provides that directors are not liable
to the Company or its stockholders for monetary damages for breaches of
fiduciary duty as a director, except for liability (a) for any breach of the
director's duty of loyalty to the Company or its stockholders, (b) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (c) for dividend payments or stock repurchases in violation of
Delaware law, or (d) for any transaction from which the director derived any
improper personal benefit.
The By-laws include provisions by which the Company will indemnify its
officers and directors and other persons against expenses, judgments, fines and
amounts paid in settlement with respect to threatened, pending or completed
suits or proceedings against such persons by reason of serving or having served
the Company as officers, directors or in other capacities, except in relation to
matters with respect to which such persons shall be determined not to have acted
in good faith, lawfully or in the best interests of the Company. With respect to
matters to which the Company's officers, directors, employees, agents or other
representatives are determined to be liable for misconduct or negligence in the
performance of their duties, the By-laws provide for indemnification only to the
extent that the Company determines that such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (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 Securities and Exchange Commission 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 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.
<PAGE>
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
(4) Instruments defining the rights of security holders, including indentures
(4.1) Restated Certificate of Incorporation of the Registrant
(Exhibit 3.1)1
(4.2) Certificate of Amendment of the Registrant (Exhibit 3.2)2
(4.3) Amended By-laws of the Registrant (Exhibit 3.2) 1
(4.4) Form of Common Stock Certificate of the Registrant (Exhibit 4.1) 1
(4.5) Amended and Restated Stock Option Plan (Exhibit 4.2)1
(4.6) June 1998 Amendment to Amended and Restated Stock Option Plan
(Exhibit 4.3)2
(4.7) February 2000 Amendment to Amended and Restated Stock Option Plan
(Exhibit 4.4)2
(5) Opinion re legality
*(5.1) Opinion of Harter, Secrest & Emery LLP
(15) Letter re unaudited interim financial information
Not applicable.
(23) Consents of experts and counsel
*(23.1) Consent of PricewaterhouseCoopers LLP
*(23.2) Consent of Harter, Secrest & Emery LLP[contained in Exhibit(5.1)]
(24) Power of Attorney
Not applicable
(99) Additional Exhibits
Not applicable
----------------------------
* Exhibit filed with this Registration Statement.
1 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Registration Statement on Form S-1 (Registration
No. 33-99684). The exhibit number contained in parenthesis refers to the exhibit
number in such Registration Statement.
2 Exhibit previously filed as part of and is incorporated herein by
reference to the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999. The exhibit number contained in parenthesis refers to
the exhibit number in such Annual Report.
<PAGE>
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes (subject to the
provision contained in Item 512(a) of Regulation S-K):
(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, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this 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 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 purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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 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 provisions described under 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 Securities 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.
<PAGE>
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 Rochester, State of New York, on the 21st day of
June, 2000.
Performance Technologies, Incorporated
By:
Donald L. Turrell
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on the 21st day of June, 2000.
Signature Title
/s/CHARLES E. MAGINNESS Chairman of the Board
-----------------------
Charles E. Maginness
/S/DONALD L. TURRELL President, Chief Executive Officer
----------------------- and Director
Donald L. Turrell
/s/DORRANCE W. LAMB Chief Financial Officer, and
----------------------- Vice President of Finance
Dorrance W. Lamb
/s/BERNARD KOZEL Director
-----------------------
Bernard Kozel
/s/JOHN E. MOONEY Director
-----------------------
John E. Mooney
/s/JOHN M. SLUSSER Director
-----------------------
John M. Slusser
/S/PAUL L. SMITH Director
-----------------------
Paul L. Smith
<PAGE>
EXHIBIT 5.1
Opinion of Harter, Secrest & Emery LLP
June 21, 2000
Performance Technologies, Incorporated
315 Science Parkway
Rochester, New York 14620
================================================================================
Re: Performance Technologies, Incorporated
================================================================================
Ladies & Gentlemen:
You have requested our opinion in connection with your Registration
Statement on Form S-8, filed under the Securities Act of 1933, as amended (the
"Registration Statement"), with the Securities and Exchange Commission in
respect of the proposed issuance by Performance Technologies, Incorporated (the
"Company") of up to an additional 500,000 shares of Common Stock, par value $.01
per share, of the Company pursuant to the Company's Amended and Restated Stock
Option Plan.
We have examined the following corporate records and proceedings of the
Company in connection with the preparation of this opinion: its Certificate of
Incorporation as amended and restated to date; its By-laws as currently in force
and effect; its minute books, containing minutes and records of other
proceedings of its stockholders and its Board of Directors, from the date of
incorporation to the date hereof; the Registration Statement and the related
exhibits thereto; applicable provisions of the laws of the State of Delaware;
and such other documents and matters as we have deemed necessary.
In rendering this opinion, we have made such examination of laws as we
have deemed relevant for the purposes hereof. As to various questions of fact
material to this opinion, we have relied upon representations and/or
certificates of officers of the Company, certificates and documents issued by
public officials and authorities, and information received from searchers of
public records.
Based upon and in reliance on the foregoing, we are of the opinion that:
1. The Company is validly existing under the laws of the State of
Delaware as of June 20, 2000.
2. The Company has the authority to issue an aggregate of
500,000 shares of Common Stock upon the effectiveness of the Registration
Statement.
3. The shares of Common Stock to be sold by the Company upon the
effectiveness of the Registration Statement will, when sold and paid for as
described in the Registration Statement, be validly authorized, legally issued
and outstanding, and fully paid and non-assessable.
We hereby consent to being named in the Registration Statement as
attorneys who will, for the Company, pass upon the validity of the issuance of
shares of Common Stock offered thereby, and we hereby consent to the filing of
this opinion as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Harter, Secrest & Emery LLP
<PAGE>
EXHIBIT 23.1
Consent of PricewaterhouseCoopers LLP
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 (Registration No. 333-24477) of our report dated January
31, 2000 relating to the financial statements and financial statement schedules
of Performance Technologies, Inc., which appears in Performance Technologies,
Inc.'s 1999 Annual Report on Form 10-K for the year ended December 31, 1999.
PricewaterhouseCoopers LLP
Rochester, New York
June 21, 2000
