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As filed with the Securities and Exchange Commission on April 26, 1995
Registration No. 33-89980
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MICRODYNE CORPORATION
(Exact name of registrant as specified in its charter)
MARYLAND 52-0856493
(State or other jurisdiction (I.R.S Employer
of incorporation or organization) Identification No.)
3601 Eisenhower Avenue Alexandria, Virginia 22304
(Address of principal executive offices) (Zip Code)
MICRODYNE CORPORATION 1993 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full Title of the Plan)
William Marshall Ellison, II
Assistant Treasurer and Controller
Microdyne Corporation
3601 Eisenhower Avenue
Alexandria, Virginia 22304
(Name and address of agent for service)
(703) 739-0500
(Telephone number, including area code, of agent for service)
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PROSPECTUS
MICRODYNE CORPORATION
100,000 Shares
Common Stock
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This Prospectus relates to the offer and sale of up to 300,000 shares of
Microdyne Corporation, a Maryland corporation (the "Company"), par value $0.10
per share (the "Common Stock") by Robert L. Cantor, Gregory W. Fazakerley and
H. Brian Thompson (the "Selling Stockholders") who may acquire such shares upon
the exercise of non-transferable options (the "Option(s)") granted or to be
granted pursuant to the Company's 1993 Non-Employee Directors Stock Option Plan
(the "Plan"). As of the date of this prospectus, each of the Selling
Stockholders has been granted under the Plan Options to acquire up to 30,000
shares of Common Stock at an exercise price of $5.625 per share (the "Shares").
The Options granted or to be granted under the Plan may be exercised anytime
while the Selling Stockholder remains or within twelve months of the date he
ceases to be a director of the Company, but no later than January 21, 1997.
The Shares acquired by the Selling Stockholders upon exercise of the Options
may be sold at any time.
The Selling Stockholders directly, through agents designated from time to
time or through brokers, dealers or underwriters also to be designated, may
sell the Common Stock from time to time on terms to be determined at the time
of sale. To the extent required, the specific Common Stock to be sold, the
purchase price, the public offering price, the names of any such agent, dealer
or underwriter, and any applicable commission or discount with respect to a
particular offer will be set forth in an accompanying Prospectus Supplement.
See "Plan of Distribution." The Common Stock may be sold from time to time by
the Selling Stockholders either directly in private transactions, or through
one or more brokers or dealers on the NASDAQ/NMS at such prices and upon such
terms as may be obtainable.
Upon any sale of the Common Stock offered hereby, the Selling Stockholders
and participating agents, brokers or dealers may be deemed to be underwriters
as that term is defined in the Securities Act of 1933, as amended (the
"Securities Act") with respect to the shares of Common Stock issuable to the
respective Selling Stockholders upon exercise of his respective Option, and
commission or discounts or any profit realized on the resale of such securities
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. The Company, however, understands that the Selling
Stockholders do not admit that they are underwriters within the meaning of the
Securities Act.
The Common Stock is listed for trading on the National Market System of
the National Association of Securities Dealers Automated Quotation System (the
"NASDAQ/NMS") under the symbol "MCDY." The last reported sale price of the
Common Stock as reported on April 25, 1995, was $16.375 per share.
The Company will not receive any of the proceeds from the sale of the
securities offered hereby. No underwriter is being utilized by the Company in
connection with this offering. All expenses incurred in connection with this
offering are being borne by the Company.
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SEE "INVESTMENT CONSIDERATIONS" FOR FACTORS WHICH SHOULD BE CONSIDERED BY
PROSPECTIVE INVESTORS.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
The date of this Prospectus is April 26, 1995
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy
statements, and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices located at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, IL
60661 and 75 Park Place, 14th Floor, New York, NY 10007. Copies of such
material also can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The common stock is listed for trading on the National Market System of
the National Association of Securities Dealers Automated Quotation System.
Reports, proxy and information statements, and other information concerning the
Company can be inspected at the offices of the NASD at 1735 K Street, N.W.,
Washington, D.C. 20006.
The Company has filed with the Commission a Registration Statement (which
term shall include all amendments, exhibits and schedules thereto) on Form S-8
under the Securities Act of 1933, as amended, with respect to the Common Stock
offered hereby. This Prospectus, which constitutes a part of the Registration
Statement, does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. Statements contained in this
Prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved and each such statement shall be deemed qualified in its entirety by
such reference. The Registration Statement may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 or obtained from the Commission at the same
address at prescribed rates.
INCORPORATION BY REFERENCE
The following documents of the Company, which have been filed with the
Commission, are hereby incorporated by reference in this Prospectus and made a
part hereof:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994;
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1994;
(c) the Company's Current Report on Form 8-K dated January 6, 1995;
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(d) the Company's Current Report on Form 8-K dated January 26,
1995;
(e) the Company's Amended Current Report on Form 8-K/A dated April
11, 1995;
(f) all other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the Annual Report referred to in (a) above; and
(g) the response to Item 1 in the Form 8-A Registration Statement
which the Company filed with the Commission in 1970 pursuant to Section 12(b)
of the Exchange Act (File No. 0-4384); and the information set forth under
"Description of Microdyne's Securities" in the Company's Registration Statement
on Form S-4 filed on May 31, 1991, under the Securities Act of 1933.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, subsequent to the date of this Prospectus and
prior to the termination of the offering of Common Stock to be made hereunder,
shall be deemed to be incorporated herein by reference and to be part hereof
from the date of filing of such documents. Any statement contained herein or
in a document incorporated herein by reference shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained in any subsequently filed document incorporated herein by reference
which statement is also incorporated herein by reference is inconsistent with
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon oral or written request, a copy of any or all of
the foregoing documents incorporated herein by reference other than exhibits to
such documents (unless the exhibits are specifically incorporated by reference
into such documents). Requests should be directed to William Marshall Ellison,
II, Assistant Treasurer and Controller, Microdyne Corporation, 3601 Eisenhower
Avenue, Alexandria, Virginia 22304, telephone number (703) 739-0500.
No person has been authorized in connection with this offering to give any
information or to make any representation not contained in this Prospectus and,
if given or made, such information or representation must not be relied upon as
having been authorized by the Company, the Selling Stockholder, or any other
person. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to purchase, any securities other than those to which
it relates, nor does it constitute an offer to sell, or a solicitation of an
offer to purchase by any person in any jurisdiction in which it is unlawful for
such person to make such an offer or solicitation. Neither the delivery of
this Prospectus nor any sale made hereunder shall under any circumstances
create any implication that the information contained herein is correct as of
any time subsequent to the date hereof.
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THE COMPANY
On June 21, 1991, Microdyne Corporation ("Microdyne" or the "Company,"
each of which term includes, unless the context indicates otherwise, Microdyne
and its consolidated subsidiaries) acquired all of the outstanding common stock
of Federal Technology Corporation ("FTC") in a transaction accounted for as a
reverse acquisition in which FTC's sole stockholder acquired voting control of
Microdyne. The acquisition was accomplished through an exchange of stock in
which Microdyne exchanged 9,250,000 shares of newly issued common stock for
100% of the then-outstanding common stock of FTC. The transaction resulted in
ownership by FTC's stockholder of approximately 68% of Microdyne's common
stock. Since the merger, the Company has operated under the Microdyne name
with corporate headquarters in Alexandria, Virginia.
Microdyne was organized and incorporated in the state of Maryland in 1967.
Prior to the acquisition, Microdyne designed, manufactured, and marketed
aerospace telemetry receivers and ancillary equipment. A wholly-owned
subsidiary, Wireless Data Corporation, manufactured industrial telemetry
products. Microdyne also produced earth station components for satellite
communications and supplied systems integration and services for
satellite-based wide-area networks. Wireless Data Corporation was sold in 1993
and the satellite operations have been discontinued.
FTC was organized and incorporated in the Commonwealth of Virginia in
1984. Prior to the acquisition of Microdyne, FTC designed and engineered
networking systems, provided third-party maintenance of data communications
systems, manufactured and distributed hardware- and software-based
communications networking products, and performed outsourcing services.
Beginning in 1990, FTC de-emphasized most of its professional services business
in order to concentrate on networking products. The Company exited systems
integration and third-party maintenance in 1992.
Today, Microdyne operates in a single industry segment encompassing three
areas of technology having data communications as a common element. They are:
Networking Products, Aerospace Telemetry, and Manufacturer Support Services.
Within Networking Products, Microdyne designs, manufactures, and markets a
line of more than 100 hardware or software products that support inter-computer
network communications. There are five main categories of products: Personal
Computer, Mainframe, Mini Computers, Remote Access and Bundled Solutions.
Products include board-level adapter cards (the basic mechanism by which a
computer is attached to a data network), data concentrators, remote-access
devices, network gateways and software. In July 1994, the Company acquired the
Token Ring adapter card product line from Digital Communications Associates,
Inc. ("DCA"), and also acquired substantially all of the assets of Gateway
Communications, Inc. ("Gateway") in September 1994. In January of 1995, the
Company acquired the Eagle Technology division product-line of Artisoft, Inc.
Microdyne and Eagle are manufacturers of computer networking products with many
of the same products sold through similar channels.
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Microdyne has been a manufacturer of telemetry receivers since 1968. In
1992, Microdyne expanded its telemetry product line to include a sophisticated
signal simulation source for use in calibrating telemetry equipment. In 1993,
Microdyne began undertaking projects combining the Company's telemetry
components and subsystems with those of other manufacturers for international
customers. In 1994, the Company introduced a new, compact telemetry receiver,
the MR700, and a diversity combiner, the Model 1600, which allows data loggers
to record an uninterrupted stream of data from two receivers, regardless of the
polarity of the signal from the telemetry source.
The Company performs Manufacturer Support Services (outservicing) for a
large corporation. These services include telephone technical support,
component and board repair services and warranty administration.
The Company's corporate headquarters are located at 3601 Eisenhower
Avenue, Alexandria, Virginia 22304, telephone number (703) 739-0500.
INVESTMENT CONSIDERATIONS
In analyzing this offering, prospective investors should carefully
consider, among other factors, the following investment considerations.
Effect of Economic and Market Conditions.
Sales of hardware products relating to networking fluctuate from time to
time based on numerous factors, including capital spending levels and general
economic conditions. Future declines in networking product sales, as a result
of general economic conditions or for any other reason, could have a material
adverse affect on the Company's business, results of operations, and financial
condition.
Control by Current Stockholders.
Directors and executive officers of the Company own beneficially
approximately 63.5% of the outstanding common stock. Philip T. Cunningham,
President and Chief Executive Officer of the Company, owns beneficially
approximately 60.4% of the outstanding common stock and he alone, and all
officers and directors of the Company as a group, are able to elect a majority
of the Company's Board of Directors and approve all matters requiring
stockholder approval, and will have significant control over the Company and
the conduct of its business. Such concentration of ownership may have the
effect of delaying, deferring, or preventing a change in control of the
Company.
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Volatility of Stock Price.
There has been significant volatility in the market prices of securities
of computer industry companies, including those of the Company. Factors such
as fluctuations in the Company's operating results, announcements of
technological innovations or new products by the Company or its competitors,
and general market conditions may continue to have a significant effect on the
market price of the Company's Common Stock. The sale or attempted sale of a
large amount of the Company's Common Stock into the market may also have a
significant impact on the trading price of the Company's Common Stock.
Payment of Dividends.
The Company has not paid dividends during the past five years. The
Company intends to retain earnings for reinvestment in its business operations.
Any future determination to pay cash dividends will be at the discretion of the
Company's Board of Directors and will be dependent upon the Company's results
of operations, financial condition, contractual restrictions and other factors
deemed relevant by the Board of Directors.
Price Range of Common Stock.
The Company's Common Stock is quoted and traded on the NASDAQ/National
Market System under the symbol "MCDY." The following table sets forth the high
and low closing prices as reported by NASDAQ for the periods indicated.
<TABLE>
<CAPTION>
High Low
<S> <C> <C>
1993
1st quarter 7 1/8 3 3/4
2nd quarter 6 3/4 4 1/4
3rd quarter 5 3/4 3 1/2
4th quarter 6 1/2 4
1994
1st quarter 5 3/8 4
2nd quarter 6 1/4 4
3rd quarter 5 3 3/8
4th quarter 5 1/2 3 3/4
</TABLE>
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<TABLE>
<S> <C> <C>
1995
1st quarter 10 5/8 4 1/2
2nd quarter 15 1/2 10 1/8
</TABLE>
Export Sales, Regulatory Standards, and Currency Exchange.
Export sales accounted for approximately $29 million, $27.5 million,
and $11.5 million, of the Company's revenue for the fiscal years ended
September 30, 1994, 1993, and 1992, respectively, and the Company expects that
export sales will continue to be a significant portion of the Company's
business. There can be no assurance that the Company's revenues from export
sales will continue to increase in the future; a decline of such sales could
have a material adverse affect on the Company's business, results of
operations, and financial condition. Although the Company's current products
are designed to meet relevant regulatory requirements of foreign markets in
which they are sold, an inability to obtain required foreign regulatory
approvals on a timely basis, or a change in such approvals, could have a
material adverse affect on the Company's operating results. Additionally,
although the Company prices its products in U.S. dollars, the business may be
affected by changes in demand resulting from fluctuations in currency exchange
rates and local purchasing practices, including seasonal fluctuations in demand
and slower payment of invoices, as well as by risks such as increases in duty
rates and constraints upon international trade.
Reliance on Indirect Distribution Channels; New Distribution Channels.
The Company sells its products through distributors for resale,
original equipment manufacturers or "OEMs," and other systems integrators
(collectively, "Distributors"). The Company's agreements with its Distributors
do not require them to offer the Company's products exclusively, and may be
terminated without cause. No assurance can be given that any Distributor will
continue to offer the Company's products. In addition, a few of the Company's
Distributors are privately-owned firms and some may not be well capitalized.
The Company is dependent on the viability and financial stability of its
Distributors, which are in turn substantially dependent upon the growth of the
personal computer and networking industries. The Company could be adversely
affected if significant numbers of such Distributors stop distributing the
Company's products, or choose to emphasize the products of the Company's
competitors.
The Company provides terms of net 30 days to most Distributors. On
certain products, those terms may be extended at the discretion of the Company.
The Company's agreements with Distributors allow defective products to be
returned for credit. Distributor terms also permit stock rotation of products,
a standard practice throughout the industry. Additionally, Distributor
agreements provide certain Distributors with protection against price
decreases. The Company's
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financial statements provide for the estimated liability associated with
defective product returns, stock rotation, and price decreases.
The Company provides end-users with warranties on its products.
Although to date the Company has not encountered material warranty claims, the
warranty periods of most products sold have not yet expired. If future
warranty claims exceed the Company's reserves, the Company's business,
financial condition and results of operation will be adversely affected.
Although the Company attempts to further limit its liability to end-users
through disclaimers of special, consequential, and indirect damages, no
assurance can be given that such limitations of liability will be legally
enforceable.
Competition: Declining Gross Profit Margins.
The computer networking industry is intensely competitive and is
significantly affected by product introductions and market activities of
industry participants. The Company expects competition to continue to increase
substantially. Increased competition could result in price reductions, reduced
margins, and loss of market share, all of which would materially and adversely
affect the Company's business, operating results and financial conditions. As
a result of price competition, the Company and its competitors are currently
experiencing downward pressure on gross profit margins, which the Company
expects to continue for the foreseeable future. Many of the Company's current
and potential competitors have significantly greater financial, technical,
marketing and other resources than the Company. There can be no assurance that
the Company will be able to compete successfully with its existing or new
competitors or that competitor pressures faced by the Company will not
materially and adversely affect its business, operating results, and financial
condition.
Dependence on New Products; Rapid Technological Change.
The computer industry in general, and the market for the Company's
products in particular, is characterized by rapidly changing technology,
evolving industry standards, and frequent new product introductions, resulting
in short product life cycles. Accordingly, the Company believes that its
future success will depend in part on its ability to enhance existing products
and to develop new products that maintain technological leadership, meet a wide
range of changing customer needs, and achieve market acceptance. Lack of
market acceptance for the Company's existing or new products, the Company's
failure to introduce new products in a timely or cost effective manner, or its
failure to increase functionality of existing products or remain price
competitive, would materially adversely affect the Company's operating results.
There can be no assurance that the Company will be successful in its product
development efforts. In addition, there can be no assurance that the Company's
products, if successfully developed or enhanced, will achieve timely market
acceptance.
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Dependence on Relationship with Manufacturer.
To date, approximately 80% of the Company's sales are from data
communications hardware and software. Of that, 47% are networking products and
software manufactured under license agreements with a single manufacturer. The
market for the Company's products could be directly affected by a decline in
the acceptance of its operating systems software, or networking hardware.
Although the Company has not received any notice from the licensor of its
intention to terminate agreements with the Company, and the Company believes
there exist no grounds for default termination, there can be no assurance that
the licensor will work cooperatively with the Company in the future.
Royalties Liabilities.
Under its licensing agreements, the Company is required to pay
royalties on sales of certain hardware pursuant to a number of manufacturing
licenses and product line acquisition agreements. Total royalty expense was
$8,087,000, $4,810,000, and $3,338,000 for the years ended September 30, 1994,
1993, and 1992 respectively.
The Company has been contacted by counsel for a U.S. patent owner
which claims that certain of the network hardware products sold by the Company
infringe its patent. The Company has been advised by its patent counsel that
its products do not infringe the patent. The Company may bring or face legal
action in connection with the patent claims in the future, and such litigation
will be subject to inherent uncertainties, especially inasmuch as complex
technical issues may be decided by a lay jury. Furthermore, such litigation
could result in substantial expense as well as diversion of effort by the
Company's management. Any adverse determination in such litigation could
subject the Company to significant liability to the patent owner, prevent the
Company from selling certain products, and adversely affect sales of the
Company's products. Any of the foregoing would have an adverse effect on the
Company's business, financial condition and results of operations.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sales of the
Common Stock offered hereby.
SELLING STOCKHOLDERS
This Prospectus covers the offer and sale of such Shares to be
acquired by the Selling Stockholders, Robert L. Cantor, Gregory W. Fazakerley
and H. Brian Thompson upon exercise of the Options granted under the Plan. Mr.
Cantor, Mr. Fazakerley and Mr. Thompson have been directors of the Company
since 1988, 1991 and 1991 respectively. As of April 26, 1995, and including
shares to be received upon exercise of Options already granted under the Plan,
Mr. Cantor, Mr. Fazakerley and Mr. Thompson each owned directly or had the
right to acquire
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upon exercise of options 130,000, 30,000 and 35,000 shares of the Company's
common stock, respectively. Ninety thousand (90,000) of those shares held by
the Selling Shareholders may be offered for the Selling Shareholders' accounts
as of the date of this prospectus. This represents 30,000 shares for the
accounts of each of the Selling Stockholders. Additional Shares to be received
by the Selling Shareholders upon exercise of Options to be granted under the
Plan in the future may also be offered from time to time. The remaining
balance of 100,000 shares of the Company's Stock held by Mr. Cantor are being
registered for sale under a Form S-3 filed with the U.S. Securities and
Exchange Commission on April 14, 1995.
PLAN OF DISTRIBUTION
The Common Stock may be sold from time to time to purchasers directly
by the Selling Stockholders. Alternatively, the Selling Stockholders may from
time to time offer the Common Stock through underwriters, dealers or agents,
who may receive compensation in the form of underwriting discounts, concessions
or commissions from the Selling Stockholders and/or the purchasers of the
Common Stock for whom they may act as agent. The Selling Stockholders and any
underwriters, dealers or agents that participate in the distribution of the
Common Stock may be deemed to be underwriters under the Securities Act, and any
profit on the sale of the Common Stock by them and any discounts, commissions
or concessions received by any such underwriters, dealers or agents might be
deemed to be underwriting discounts and commissions under the Securities Act.
At the time a particular offer of the Common Stock is made, to the
extent required, a Prospectus Supplement will be distributed that will set
forth the number of shares of Common Stock being offered and the terms of the
offering, including the name or names of any underwriters, dealers or agents,
any discounts, commissions and other items constituting compensation from the
Selling Stockholders and any discounts, commissions or concessions allowed or
reallowed or paid to dealers.
The Common Stock may be sold from time to time in one or more
transactions at a fixed offering price which may be changed at varying prices
determined at the time of sale or at negotiated prices.
LEGAL MATTERS
The legality of the Common Stock offered hereby is being passed upon
for the Company by McGuire, Woods, Battle & Boothe L.L.P., 8280 Greensboro
Drive, McLean, Virginia 22102-3892.
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EXPERTS
The consolidated financial statements and schedules included in the
Company's Annual Report on Form 10-K for the year ended September 30, 1994 are
incorporated herein by reference in reliance on the report of Grant Thornton
L.L.P., independent accountants, given on the authority of said firm as experts
in auditing and accounting.
The financial statements of Eagle Technology (A Business Unit of
Artisoft, Inc.) for the six months ended December 31, 1994 and for the six
months ended June 30, 1994 included in the Company's Current Report on Form
8-K/A filed on April 11, 1995 are incorporated herein by reference in reliance
on the report of KPMG Peat Marwick L.L.P., independent accountants, given on
the authority of said firm as experts in auditing and accounting.
The financial statements incorporated in this Prospectus by reference
to the financial statements of Eagle Technology for the year ended December 31,
1993 included on pages 14 to 22 of Microdyne Corporation's Form 8-K/A dated
April 11, 1995 have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Microdyne Corporation (the "Registrant") hereby incorporates by
reference the following documents filed with the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934 (the
"Exchange Act"):
(a) The Registrant's Annual Report on Form 10-K for the period
ended September 30, 1994 (File No. 0-4384).
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1994 (File No. 0-4384);
(c) the Company's Current Report on Form 8-K dated January 6, 1995
(File No. 0-4384);
(d) the Company's Current Report on Form 8-K dated January 26,
1995 (File No. 0-4384);
(e) the Company's Amended Current Report on Form 8-K/A dated April
11, 1995 (File No. 0-4384);
(f) All other 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 referred to in (a) above.
(g) The response to Item 1 in the Form 8-A Registration Statement
which the Registrant filed with the Commission in 1970 pursuant to Section
12(b) of the Exchange Act (File No. 0-4384); and the information set forth
under "Description of Microdyne's Securities" in the Registrant's Registration
Statement on Form S-4 filed on May 31, 1991, under the Securities Act of 1933.
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 have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof from the
date of filing of such documents.
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Item 4. Description of Securities.
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law provides that the charter of a
Maryland corporation may include any provision expanding or limiting the
liability of its directors and officers to the corporation or its stockholders
for money damages, but may not include any provision that restricts or limits
the liability of its directors or officers to the corporation or its
stockholders (i) to the extent that it is proved that the person actually
received an improper benefit or profit in money, property, or services for the
amount of the benefit or profit in money, property, or services actually
received, (ii) to the extent that a judgment or other final adjudication
adverse to the person is entered in a proceeding based on a finding in the
proceeding that the person's action, or failure to act, was the result of
active and deliberate dishonesty and was material to the cause of action
adjudicated in the proceeding or (iii) with respect to any action brought by or
on behalf of a State governmental entity, receiver, conservator, or depositor
against a director or officer of certain financial institutions.
With respect to the liability of the Registrant's directors or
officers for monetary damages to the Registrant or its stockholders, Article
NINTH of the Registrant's Articles of Amendment and Restatement provides as
follows:
The directors and officers of Microdyne Corporation, acting in their
capacity as such, shall be liable for money damages to Microdyne Corporation or
its shareholders only in either of the following circumstances:
1. If it is actually proven that the director or officer
actually received an improper benefit or profit in money, property, or
services, and such director's or officer's liability shall not exceed
the amount of the benefit or profit in money, property, or services
actually received by such director or officer; or,
2. If a judgment or other final adjudication adverse to
such director or officer is entered in a proceeding based on a finding
in the proceeding that the director's or officer's action, or failure
to act, was the result of active and deliberate dishonesty and was
material to the cause of action adjudicated in the proceeding.
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The language of this Article NINTH is intended to limit the
liability of directors and officers to the fullest extent permissible
by Section 2-405.2 of the Corporations and Associations Article of the
Annotated Code of Maryland, as amended from time to time.
Section 2-418 of the Maryland General Corporation Law generally
provides that a corporation may indemnify any director made a party to any
proceeding by reason of service in that capacity unless it is established that
(i) the act or omission of the director was material to the matter giving rise
to the proceeding, and (A) was committed in bad faith or (B) was the result of
active and deliberate dishonesty; (ii) the director actually received an
improper personal benefit in money, property, or services; or (iii) in the case
of any criminal proceeding, the director had reasonable cause to believe that
the act or omission was unlawful.
Indemnification may be against judgments, penalties, fines,
settlements, and reasonable expenses actually incurred by the director in
connection with the proceeding. However, if the proceeding was one by or in
the right of the corporation, indemnification may not be made in respect of any
proceeding in which the director shall have been adjudged to be liable to the
corporation. The termination of any proceeding by judgment, order, or
settlement does not create a presumption that the director did not meet the
requisite standard of conduct set forth in the preceding paragraph. The
termination of any proceeding by conviction, or a plea of nolo contendere or
its equivalent, or an entry of an order of probation prior to judgment, creates
a rebuttable presumption that the director did not meet that standard of
conduct.
A director may not be indemnified in respect of any proceeding
charging improper personal benefit to the director, whether or not involving
action in the director's official capacity, in which the director was adjudged
to be liable on the basis that personal benefit was improperly received.
Indemnification may not be made by the corporation unless authorized for a
specific proceeding after a determination has been made that indemnification of
the director is permissible in the circumstances because the director has met
the standard of conduct described above. Such determination must be made:
(i) by the board of directors by a majority vote of a quorum
consisting of directors not, at the time, parties to the
proceeding, or, if such a quorum cannot be obtained, then by a
majority vote of a committee of the board consisting solely of
two or more directors not, at the time, parties to such
proceeding and who were duly designated to act in the matter
by a majority vote of the full board in which the designated
directors who are parties may participate;
(ii) by special legal counsel selected by the board of directors or
a committee of the board by vote as set forth in the preceding
subparagraph (i), or, if the requisite quorum of the full
board cannot be obtained therefor and the committee cannot be
established, by a majority vote of the full board in which
directors who are parties may participate; or
(iii) by the stockholders.
II-3
<PAGE> 16
Authorization of indemnification and determination as to
reasonableness of expenses must be made in the same manner as the determination
that indemnification is permissible. However, if the determination that
indemnification is permissible is made by special legal counsel, authorization
of indemnification and determination as to reasonableness of expenses must be
made in the manner specified in subparagraph (ii) above for selection of such
counsel.
Reasonable expenses incurred by a director who is party to a
proceeding may be paid or reimbursed by the corporation in advance of the final
disposition of the proceeding upon receipt by the corporation of (i) a written
affirmation by the director of the director's good faith belief that the
standard of conduct necessary for indemnification by the corporation as
authorized in this section has been met; and (ii) a written undertaking by or
on behalf of the director to repay the amount if it shall ultimately be
determined that the standard of conduct has not been met. The undertaking
described in the preceding sentence shall be an unlimited general obligation of
the director but need not be secured and may be accepted without reference to
financial ability to make the repayment.
Unless limited by the charter, (i) a corporation may indemnify and
advance expenses to an officer, employee, or agent of the corporation to the
same extent that it may indemnify directors under this section; and (ii) a
corporation, in addition, may indemnify and advance expenses to an officer,
employee, or agent who is not a director to such further extent, consistent
with law, as may be provided by its charter, bylaws, general or specific action
of its board of directors, or contract.
The Maryland General Corporation Law also generally provides for
mandatory indemnification of a director or officer who has been successful, on
the merits or otherwise, in the defense of certain proceedings.
Article VIII of the Registrant's bylaws states, as to indemnification:
The corporation shall indemnify any director, officer or
employee, or former director, officer or employee of the corporation,
or any person who may have served at its request as a director,
officer or employee of another corporation in which it owns shares of
capital stock, or of which it is a creditor against any liability and
any reasonable expense that may be incurred by him in connection with
or resulting from any claim, action, suit or proceeding, civil or
criminal, or in connection with an appeal relating thereto, in which
he may become involved, as a party or otherwise, by reason of his
being or having been a director, officer or an employee referred to in
this Article; provided such person acted, in good faith, in what he
reasonably believed to be the best interests of the corporation, or
such other company, as the case may be, and, in addition, in any
criminal action or proceeding, had no reasonable cause to believe that
his conduct was unlawful.
Any director, officer, or employee referred to in this Article
who has been wholly successful, on the merits or otherwise, with
respect to any claim, action, suit, or
II-4
<PAGE> 17
proceeding of the character described in this Article shall be
entitled to indemnification as of right. Except as provided in the
preceding sentence, any indemnification under this Article shall be
made in the discretion of the corporation, but only if (i) the board
of directors, acting by a quorum consisting of directors who are not
parties to such claim, action, suit, or proceeding, shall find that
the director, officer, or employee has met the standards of conduct
set forth in the first section of this Article, or (ii) independent
legal counsel shall deliver to the board of directors their written
advice that, in their opinion, such director, officer, or employee has
met such standards.
The Registrant has entered into Indemnification Agreements with
certain past directors, and one current director, Robert L. Cantor. Each
Agreement generally requires the Registrant to indemnify the director to the
full extent authorized or permitted under Maryland law and, in addition, to
indemnify the director against expenses, judgments, damages, penalties, fines
and amounts paid in settlement in connection with certain threatened, pending
or completed proceedings to which the director is, was or at any time becomes a
party, or is threatened to be made a party, by reason of the fact that the
director is, was or at any time becomes a director, officer, employee or agent
of the Registrant, or is or was serving at the request of the Registrant as a
director, officer, employee, trustee or agent of another domestic or foreign
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.
Each Agreement generally provides that indemnification shall not be
paid by the Registrant (i) in respect to remuneration paid to the director if
it shall be determined by a final judgment or other final adjudication that
such remuneration was in violation of law, (ii) on account of any suit in which
final judgment or order is rendered against the director for an accounting of
profits made from the purchase or sale by the director of securities of the
Registrant pursuant to provisions of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any federal, state
or local statutory law, (iii) on account of the director's conduct which is
finally adjudged by a court of competent jurisdiction to have been knowingly
fraudulent, deliberately dishonest or involved willful misconduct, (iv) if a
final decision by a court having jurisdiction in the matter shall determine
that such indemnification is not lawful, (v) if the director has not been
successful on the merits or otherwise in the defense of any proceeding
described in the preceding paragraph and unless otherwise determined by a court
of competent jurisdiction, if the director is determined not to have satisfied
the requisite standard of care required by Maryland law for permitted
indemnification of a director, or (vi) if a proceeding was one by or in the
right of the Registrant in which the director shall have been adjudged liable
to the Registrant.
Each Agreement also generally provides that the Registrant shall pay
or reimburse the director for reasonable expenses incurred by the director in
advance of the final disposition of any civil, criminal or administrative
action, suit or proceeding to which the director may be entitled to
indemnification, provided the director furnishes the Registrant a written
affirmation of his good faith belief that the standard of conduct necessary for
indemnification as required by Maryland law has been met and a determination
has not been made by those persons required
II-5
<PAGE> 18
by Maryland law to make a determination based on the facts then known that
would preclude indemnification under Maryland law.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits
4.1 Microdyne Corporation 1993 Non-Employee Directors Stock Option Plan.*
4.2 Articles of Amendment and Restatement of Microdyne Corporation
(filed as Exhibit 4(A)(2) to the Registrant's 1989 Form S-2
Registration Statement and incorporated herein by reference),
and the Registrant's Bylaws (filed as Exhibit 4(B)(1) to the
Registrant's 1990 Form S-3 Registration Statement and
incorporated herein by reference).
4.3 Form of Option Agreement.*
5.1 Opinion of McGuire, Woods, Battle & Boothe L.L.P. as to legality of
securities being registered.*
23.1 Consent of McGuire, Woods, Battle & Boothe L.L.P. is contained within
the opinion of counsel attached as Exhibit 5.1.*
23.2 Consent of Grant Thornton L.L.P.*
23.3 Consent of KPMG Peat Marwick L.L.P.
23.4 Consent of Price Waterhouse L.L.P.
24 Power of attorney.*
----------------------
* Previously Filed
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;
II-6
<PAGE> 19
(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 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;
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this Section 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 the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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.
(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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 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 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
II-7
<PAGE> 20
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 Act and will be governed by the final adjudication
of such issue.
II-8
<PAGE> 21
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 Alexandria, Commonwealth of Virginia, on this
25th day of April, 1995.
MICRODYNE CORPORATION
By: /s/ PHILIP T. CUNNINGHAM
----------------------------------
Philip T. Cunningham
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ PHILIP T. CUNNINGHAM President, April 25, 1995
- --------------------------------- Chief Executive Officer
Philip T. Cunningham and Director
(Principal Executive Officer)
/s/ CHRISTOPHER M. MAGINNISS Executive Vice President, April 25, 1995
- --------------------------------- Treasurer and Director
Christopher M. Maginniss (Principal Financial Officer)
/s/ WILLIAM MARSHALL ELLISON, II Assistant Treasurer and April 25, 1995
- --------------------------------- Controller
William Marshall Ellison, II (Principal Accounting Officer)
/s/ CHRISTOPHER M. MAGINNISS (POA) Director April 25, 1995
- ---------------------------------
Robert L. Cantor
/s/ CHRISTOPHER M. MAGINNISS (POA) Director April 25, 1995
- ---------------------------------
Gregory W. Fazakerley
/s/ CHRISTOPHER M. MAGINNISS (POA) Director April 25, 1995
- ---------------------------------
H. Brian Thompson
</TABLE>
<PAGE> 22
Index to Exhibits
Exhibit
4.1 Microdyne Corporation 1993 Non-Employee Directors
Stock Option Plan.*
4.2 Articles of Amendment and Restatement of
Microdyne Corporation (filed as Exhibit 4(A)(2)
to the Registrant's 1989 Form S-2 Registration
Statement and incorporated herein by reference),
and the Registrant's Bylaws (filed as Exhibit
4(B)(1) to the Registrant's 1990 Form S-3
Registration Statement and incorporated herein
by reference).
4.3 Form of Option Agreement.*
5.1 Opinion of McGuire, Woods, Battle & Boothe L.L.P. as
to legality of securities being registered.*
23.1 Consent of McGuire, Woods, Battle & Boothe L.L.P. is
contained within the opinion of counsel attached
as Exhibit 5.1.*
23.2 Consent of Grant Thornton L.L.P.*
23.3 Consent of KPMG Peat Marwick L.L.P.
23.4 Consent of Price Waterhouse L.L.P.
24 Power of attorney.*
-----------------------
* Previously Filed
<PAGE> 1
Exhibit 23.3
(KPMG PEAT MARKWICK LLP LOGO)
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statement on
Form S-8 of Microdyne Corporation of our report dated April 3, 1995 with
respect to the balance sheets of Eagle Technology (a business unit of Artisoft,
Inc.) as of June 30, 1994 and December 31, 1994 and the related statements of
operations and business unit equity and cash flows for the six month periods
ended June 30, 1994 and December 31, 1994, which report appears in the Form
8-K/A of Microdyne Corporation dated April 11, 1995 and to the reference to our
firm under the heading "Experts" in the registration statement.
/s/ KPMG PEAT MARWICK LLP
Pheonix, Arizona
April 26, 1995
<PAGE> 1
Exhibit 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of Post Effective Amendment No. 1 to the Registration
Statement on Form S-8 of Microdyne Corporation of our report dated January 27,
1994 relating to the financial statements of Eagle Technology, which appears on
page 15 of Microdyne Corporation's Form 8-K/A dated April 11, 1995. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Jose, California
April 21, 1995
