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As filed with the Securities and Exchange Commission on January 12, 1999
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
White Electronic Designs Corporation
(Exact name of registrant as specified in its charter)
INDIANA 35-0905052
(State or other jurisdictio (I.R.S. Employer
of incorporation) Identification No.)
3601 E. University Drive
Phoenix, Arizona 85034
(602) 437-1520
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Electronic Designs, Inc. 1987 Stock Option Plan
(As Amended Through November 6, 1996)
(Full title of plans)
Hamid R. Shokrgozar, President and Chief Executive Officer
White Electronic Designs Corporation
3601 E. University Drive
Phoenix, Arizona 85034
(602) 437-1520
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all correspondence to:
LaDawn Naegle, Esq.
Bryan Cave LLP
700 13th Street, N.W., Suite 700
Washington, D.C. 20005-3960
(202) 508-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed Amount
securities Amount maximum maximum of
to be to be offering price aggregate registration
registered registered per share (1) offering price (1) fee
- - - ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, stated value 2,400,000 $ 1.719 $ 4,125,600 $ 1,146.92
$.10 per share (2)
- - - ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purposes of determining the registration fee
pursuant to Rule 457(c), based upon the average of the closing bid and ask
prices for the Common Stock on January 7, 1999, as reported by the American
Stock Exchange.
(2) Pursuant to the Rights Agreement (the "Bowmar Rights Agreement") between the
Registrant and American Stock Transfer and Trust Company, as Rights Agent, dated
as of December 6, 1996, as amended, Common Stock purchase rights (the "Common
Stock Purchase Rights") are attached to and trade with the Common Stock. Value
attributable to such Common Stock Purchase Rights, if any, is reflected in the
market price of the Common Stock.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
("Securities Act"), and the Note to Part I of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed by White
Electronic Designs Corporation (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated herein by reference and made a
part hereof:
(1) Annual Report on Form 10-K for the fiscal year ended October
3, 1998, filed December 24, 1998.
(2) Current Report on Form 8-K dated October 26, 1998, filed
November 10, 1998, as amended by Form 8-K/A, filed
January 11, 1999.
(3) The description of the Company Common Stock contained in the
Company's Registration Statement on Form 8-A, filed May 21,
1998.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof shall hereby 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 herein by reference 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 incorporated or
deemed to be incorporated herein by reference modifies or supersedes such
statement. Any statement contained herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed document incorporated or deemed to
be incorporated herein by reference 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.
None.
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Item 6. Indemnification of Directors and Officers.
Under Indiana law, a corporation may indemnify an individual made a
party to a threatened, pending, or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, whether formal or informal,
because the individual is or was a director against liability incurred in the
proceeding if: (i) the individual's conduct was in good faith, and (ii) the
individual reasonably believed (A) in the case of conduct in the individual's
official capacity with the corporation, that the individual's conduct was in the
best interests of the corporation, (B) in all other cases, that the individual's
conduct was at least not opposed to the best interests of the corporation, and
(C) in the case of a criminal proceeding, the individual either had reason to
believe the individual's conduct was lawful, or had no reason to believe the
individual's conduct was unlawful. Unless limited by its articles of
incorporation, a corporation shall indemnify a director, officer, employee or
agent who was wholly successful, on the merits or otherwise, in the defense of
any proceeding to which the director, officer, employee or agent was a party
because the director, officer, employee or agent is or was a director, officer,
employee or agent of the corporation against reasonable expenses incurred in
connection with the proceeding. A corporation may pay for or reimburse
reasonable expenses incurred by a director, officer, employee or agent who is a
party to a proceeding in advance of final disposition of the proceeding if: (i)
the individual furnishes the corporation written affirmation of the individual's
good faith belief that the individual has met the standard of conduct for
permissive indemnification set forth above; (ii) the individual furnishes the
corporation a written undertaking to repay the advance if it is ultimately
determined that the individual did not meet such standard of conduct; and (iii)
a determination is made by the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding that the facts
known to them would not preclude indemnification under Indiana law. In addition,
a corporation may indemnify and advance expenses to a director, officer,
employee or agent, consistent with public policy, that may be provided its
articles of incorporation, bylaws, general or specific action of its board of
directors or contract.
The Company's Amended and Restated Articles of Incorporation provide
that the Company shall indemnify a director or officer of the Company who was
wholly successful, on the merits or otherwise, in the defense of any proceeding
to which the director or officer was a party because the director or officer is
or was a director or officer of the Company against reasonable expenses incurred
by the director or officer in connection with the proceeding. The Company may
indemnify an individual made a party to a proceeding because the individual is
or was a director, officer, employee or agent of the Company against liability
if authorized in the specific case after determination, in the manner required
by Indiana law, that indemnification is permissible in the circumstances because
the individual has met the standard of conduct for permissive indemnification
under Indiana law set forth above. The indemnification and advancement of
expenses for directors, officers, employees and agents of the Company shall
apply when such persons are serving at the Company's request while a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, as
well as in their official capacity with the Company. The Company may also pay
for or reimburse the reasonable expenses incurred by a director, officer,
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employee or agent of the Company who is a party to a proceeding in advance of
final disposition of the proceeding upon compliance with Indiana law.
Under Indiana law, a corporation may purchase and maintain insurance on
behalf of an individual who is or was a director, officer, employee, or agent of
the corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, member, manager, trustee, employee or agent of another foreign
or domestic corporation, partnership, limited liability company, joint venture,
trust, employee benefit plan, or other enterprise, against liability asserted
against or incurred by the individual in that capacity or arising from the
individual's status as a director, officer, member, manager, employee, or agent,
whether or not the corporation would have power to indemnify the individual
against the same liability under Indiana law.
The Company's Amended and Restated Articles of Incorporation provide
that the Company may purchase and maintain insurance in the manner specified
under Indiana law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Rights Agreement, dated December 6, 1996 between the Company and American Stock Transfer
and Trust Company, as Rights Agent ("Rights Agreement") (incorporated herein by reference
to Exhibit 5C to the Registrant's Current Report on Form 8-K filed December 19, 1996).
4.2 Stock Certificate of the Company (incorporated herein by reference to Exhibit 4.3 to the
Registrant's Annual Report on Form 10-K filed December 24, 1998).
4.3 Amendment No. 1 to Rights Agreement, effective as of May 3, 1998 (incorporated herein by
reference to Exhibit 4.3 to the Registrant's Registration Statement on Form S-4,
Registration No. 333-56565).
5.1 Opinion of Bryan Cave LLP, counsel to Registrant, relating to legality of securities
being registered.
</TABLE>
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<TABLE>
<S> <C>
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page).
</TABLE>
Item 9. Undertakings.
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions or otherwise, the
Company has been advised that, in the opinion of the Securities and Exchange
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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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 Act and will be governed by the
final adjudication of such issue.
(b) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement to:
(i) include any prospectus required by Section 10
(a)(3) of the Securities Act;
(ii) 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) 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.
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(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.
(c) The Company hereby undertakes that for the purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or 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 that 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, 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 the City of Phoenix, State of Arizona, on January 12, 1999.
WHITE ELECTRONIC DESIGNS CORPORATION
By: /s/ Hamid R. Shokrgozar
-----------------------------------------
Hamid R. Shokrgozar
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each of such persons appoints Hamid
R. Shokrgozar or Joseph G. Warren, Jr. or each of them with full power to act
without the other, his true and lawful attorneys-in-fact and agents of him and
on his behalf and in his name, place and stead, and in any and all capacities,
with full and several power of substitution, to sign and file with the proper
authorities any and all documents in connection with the Registration Statement
on Form S-8, filed with the Securities and Exchange Commission on January 12,
1999, granting unto said attorneys, and each of them, 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 might or could do if personally present, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Hamid R. Shokrgozar President and Chief Executive Officer January 12, 1999
- - - -------------------------
Hamid R. Shokrgozar
/s/ Joseph G. Warren, Jr. Vice President, Finance, Chief Financial January 12, 1999
- - - ------------------------- Officer, Secretary, Treasurer and Chief
Joseph G. Warren, Jr. Accounting Officer
/s/ Donald F. McGuiness Chairman of the Board of Directors January 12, 1999
- - - -------------------------
Donald F. McGuiness
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Thomas M. Reahard Director January 12, 1999
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Thomas M. Reahard
/s/ Edward A. White Director January 12, 1999
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Edward A. White
/s/ Norman T. Hall Director January 12, 1999
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Norman T. Hall
/s/ Thomas J. Toy Director January 12, 1999
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Thomas J. Toy
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
- - - ----------- -----------
4.1 Rights Agreement, dated December 6, 1996 between the Company and
American Stock Transfer and Trust Company, as Rights Agent
("Rights Agreement") (incorporated herein by reference to
Exhibit 5C to the Registrant's Current Report on Form 8-K filed
December 19, 1996).
4.2 Stock Certificate of the Company (incorporated herein by
reference to Exhibit 4.3 to the Registrant's Annual Report on
Form 10-K filed December 24, 1998).
4.3 Amendment No. 1 to Rights Agreement, effective as of May 3, 1998
(incorporated herein by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-4, Registration
No. 333-56565).
5.1 Opinion of Bryan Cave LLP, counsel to Registrant, relating to
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Bryan Cave LLP (included in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on signature page).
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EXHIBIT 5.1
[BRYAN CAVE LLP LETTERHEAD]
January 11, 1999
Board of Directors
White Electronic Designs Corporations
3601 E. University Drive
Phoenix, Arizona 85034
Gentlemen:
At your request, this letter relates to the Registration Statement on Form
S-8 (the "Registration Statement") filed by White Electronic Designs
Corporation, an Indiana corporation (the "Company") with the Securities and
Exchange Commission in connection with the registration under the Securities Act
of 1933, as amended, of up to an aggregate of 2,400,000 shares of the Company's
common stock, stated value $.10 per share (the "Shares"), to be issued under the
Electronic Designs, Inc. 1987 Stock Option Plan (the "Plan").
In connection therewith, we have examined and relied as to matters of fact
upon the Registration Statement, originals or copies certified to our
satisfaction of the Amended and Restated Articles of Incorporation of the
Company and the Amended and Restated Code of By-Laws of the Company,
certificates of public officials, statements and certificates of officers of the
Company, proceedings of the Board of Directors of the Company and such other
corporate records, documents, certificates, opinions and instruments as we have
deemed necessary or appropriate in order to enable us to render the opinion
expressed below.
In rendering this opinion, we have assumed the genuineness of all
signatures on all documents examined by us, the authenticity of all documents
submitted to us as originals and the conformity to authentic originals of all
documents submitted to us as certified or photostatted copies. As to all
questions of fact material to this opinion that have not been independently
established, we have relied upon representations of the Company in the
Registration Statement, certificates or comparable documents of officers of the
Company and of public officials. Our examination of matters of law has been
limited to the Indiana Business Corporation Law.
Based upon the foregoing, and in reliance thereon and subject to the
qualifications and limitations stated herein, it is our opinion that the Shares
to be issued pursuant to the Plan will have been duly authorized and legally
issued and will constitute fully paid and non-assessable shares of common stock
of the Company when issued in accordance with the Plan. This opinion is being
provided solely to the Company and may not be relied upon by any other
<PAGE> 2
Board of Directors
January 11, 1998
Page 2
person. This opinion relates only to the number of shares set forth above.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not hereby admit that we
come within the category of person whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Bryan Cave LLP
BRYAN CAVE LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the White Electronic
Designs Corporations registration statement on Form S-8, filed on January 12,
1999, of 1) our report dated November 13, 1998 (except for the third paragraph
of Note 18 for which the date is December 3, 1998), on our audits of the
consolidated financial statements of White Electronic Designs Corporation as of
October 3, 1998 and September 27, 1997, and the results of its operations and
its cash flows for each of the three years in the period ended October 3, 1998,
appearing in the annual report of White Electronic Designs Corporation, filed
with the Securities and Exchange Commission on December 24, 1998 and 2) our
report dated November 6, 1998 on our audits of the consolidated financial
statements of Electronic Designs, Inc. as of September 30, 1998 and 1997, and
the results of its operations and its cash flows for each of the three years in
the period ended September 30, 1998, appearing in Form 8-K/A of White Electronic
Designs Corporation, filed with the Securities and Exchange Commission on
January 11, 1999.
PricewaterhouseCoopers LLP
Phoenix, Arizona
January 12, 1999
