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As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. ___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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WJ COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-1402710
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
401 RIVER OAKS PARKWAY, SAN JOSE, CALIFORNIA 95134
(Address of Principal Executive Offices) (Zip Code)
WJ COMMUNICATIONS, INC. 2000 STOCK INCENTIVE PLAN
WJ COMMUNICATIONS 2000 NON-EMPLOYEE DIRECTOR STOCK COMPENSATION PLAN
(Full title of the Plans)
COPY TO:
WILLIAM T. FREEMAN ANTHONY T. ILER, ESQ.
Chief Financial Officer Irell & Manella LLP
WJ Communications, Inc. 1800 Avenue of the Stars
401 River Oaks Parkway Suite 900
San Jose, CA 95134 Los Angeles, CA 90067
(408) 577-6200 (310) 203-7602
(Name, address including zip code and telephone number, including
area code, of registrants' agent for service)
CALCULATION OF REGISTRATION FEE
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------------------------------------ ----------------- -------------------- -------------------- ----------------
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1) SHARE (2) PRICE (2) FEE
------------------------------------ ----------------- -------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 17,043,704 $3.33 $56,727,589 $14,976.08
share shares
------------------------------------ ----------------- -------------------- -------------------- ----------------
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also relates to an indeterminate number of
additional shares of common stock that may be issued pursuant to
anti-dilution and adjustment provisions of the above-named plans.
(2) Estimated solely for purposes of calculating the registration fee, in
accordance with Rule 457(h) under the Securities Act of 1933, as
amended. Such estimate is based upon: (i) in the case of shares of
common stock which may be purchased upon exercise of outstanding
options, the price at which the options may be exercised; and (ii) in
the case of shares of common stock for which options have not yet been
granted and the option price of which is therefore unknown, the average
of the high and low sales prices of the common stock of the Registrant
as posted on the Nasdaq National Market on December 19, 2000, a date
within 5 business days prior to the filing of this registration
statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* As permitted by Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement omits the information
specified in Part I of Form S-8. The documents containing the information
specified in Part I will be delivered to the participants in the plans
covered by this registration statement as required by Rule 428(b). Such
documents are not being filed with the Securities and Exchange Commission
(the "Commission") as part of this registration statement or as a prospectus
or a prospectus supplement pursuant to Rule 424 under the Securities Act.
Such documents and the documents incorporated by reference into this
registration statement pursuant to Item 3 of Part II of this registration
statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act and are on file at the
Registrant's principal executive offices and available, without charge, upon
written or oral request to Mr. Rainer N. Growitz, Vice President - Finance
and Secretary, WJ Communications, Inc., 401 River Oaks Parkway, San Jose,
California 95134. Telephone requests may be directed to Mr. Growitz at (408)
577-6200.
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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 Commission
by the Registrant are incorporated by reference in this registration statement.
(1) The Registrant's Prospectus that was a part of the
Registrant's Registration Statement on Form S-1 (File No.
333-38518) filed on June 2, 2000, as amended through August
18, 2000, including the Prospectus filed pursuant to Rule
424(b) under the Securities Act;
(2) The description of the Registrant's common stock contained in
the Registrant's Registration Statement on Form 8-A filed with
the Commission on August 14, 2000; and
(3) The Registrant's quarterly report on Form 10-Q filed with the
Commission on November 13, 2000.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
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.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The law firm of Irell & Manella LLP, as counsel to the Registrant, has
given an opinion as to the validity of the securities being registered pursuant
to this Registration Statement, which opinion is attached hereto as Exhibit 5.1.
Irell & Manella LLP has a pecuniary interest in 182,370 shares of the
Registrant's common stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation has the power to indemnify its officers, directors,
employees and agents (or persons serving in such positions in another entity at
the request of the corporation) against expenses, including attorney's fees,
judgments, fines or settlement amounts actually and reasonably incurred by them
in connection with the defense of any action by reason of being or having been
directors or officers, if such person shall have acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation (and, with respect to any criminal action, had no reasonable cause
to believe the person's conduct was unlawful), except that if such action shall
be by or in the right of the corporation, no such indemnification shall be
provided as to any claim, issue or matter as to which such person shall have
been judged to have been liable to the corporation unless and to the extent that
the Court of Chancery of the State of Delaware, or another court in which the
suit was brought, shall determine upon application that, in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity. The Registrant's Certificate of Incorporation provides that the
Registrant will indemnify its officers and directors to the fullest extent
permitted by Delaware law.
As permitted by Section 102 of the DGCL, the Registrant's Certificate
of Incorporation provides that no director shall be liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as a
director other than (i) for breaches of the director's duty of loyalty to the
Registrant or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
the unlawful payment of dividends or unlawful stock purchases or redemptions
under Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit.
The Registrant maintains directors and officers liability insurance for
the benefit of its directors and certain of its officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Irell & Manella LLP (including consent).
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of Irell & Manella LLP (included in the opinion filed
as Exhibit 5.1).
99.1 WJ Communications, Inc. 2000 Stock Incentive Plan
(incorporated by reference to Exhibit 10.8 to the Registrant's registration
statement on Form S-1 filed with the Commission on July 12, 2000).
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99.2 WJ Communications, Inc. 2000 Non-Employee Director Stock
Compensation Plan.
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 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. 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 and 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
percent 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) 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
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 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.
(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.
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b. The undersigned 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 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
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 of
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.
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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 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 the City of San Jose, State of
California, on this 21st day of December, 2000.
WJ COMMUNICATIONS, INC.
By: /s/ William T. Freeman
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Name: William T. Freeman
Title: Chief Financial Officer
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 21, 2000.
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SIGNATURE TITLE
<S> <C>
/s/ Malcolm J. Caraballo President and Chief Executive Officer
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Malcolm J. Caraballo
/s/ William T. Freeman Chief Financial Officer (principal financial officer)
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William T. Freeman
/s/ David R. Pulvino Controller
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David R. Pulvino
/s/ W. Dexter Paine, III Chairman of the Board
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W. Dexter Paine, III
/s/ Saul A. Fox Director
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Saul A. Fox
/s/ Jason B. Hurwitz Director
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Jason B. Hurwitz
/s/ Wray T. Thorn Director
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Wray T. Thorn
/s/ James R. Kroner Director
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James R. Kroner
/s/ J. Thomas Bentley Director
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J. Thomas Bentley
/s/ Charles E. Robinson Director
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Charles E. Robinson
/s/ Christopher B. Paisley Director
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Christopher B. Paisley
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-8-
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EXHIBIT INDEX
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Exhibit Description
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<S> <C>
5.1 Opinion of Irell & Manella LLP (including consent).
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of Irell & Manella LLP (included in the opinion filed as Exhibit 5.1).
99.1 WJ Communications, Inc. 2000 Stock Incentive Plan (incorporated by reference to
Exhibit 10.8 to the Registrant's registration statement on Form S-1 filed with
the Commission on July 12, 2000).
99.2 WJ Communications, Inc. 2000 Non-Employee Director Stock Compensation Plan.
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