<PAGE>
As filed with the Securities and Exchange Commission on September 22, 1995
Registration No. 33-_________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________
WEGENER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 81-0371341
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
11350 TECHNOLOGY CIRCLE
DULUTH, GEORGIA 30136
(770) 623-0096
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT A. PLACEK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
11350 TECHNOLOGY CIRCLE
DULUTH, GEORGIA 30136
(770) 623-0096
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
HELEN T. FERRARO, ESQ.
SMITH, GAMBRELL & RUSSELL
3343 PEACHTREE ROAD, N.E., SUITE 1800
ATLANTA, GEORGIA 30326
(404) 264-2620
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 1,772,000 $11.50 $20,378,000 $7,027
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(1) Estimated solely for the purpose of calculating the filing fee pursuant to
Rule 457(c) under the Securities Act of 1933.
</TABLE>
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS
1,772,000 SHARES
WEGENER CORPORATION
COMMON STOCK
OF THE 1,772,000 SHARES OF COMMON STOCK OF WEGENER CORPORATION (THE
"COMPANY") OFFERED HEREBY, 1,700,000 SHARES ARE BEING SOLD BY CERTAIN
SHAREHOLDERS. IN ADDITION, 72,000 SHARES OF COMMON STOCK REPRESENT SHARES
UNDERLYING OUTSTANDING COMMON STOCK PURCHASE WARRANTS OR OPTIONS, AND ARE BEING
OFFERED FOR SALE TO THE PUBLIC BY THE HOLDERS OF SUCH WARRANTS AND OPTIONS UPON
THE EXERCISE THEREOF. SUCH SECURITIES ARE EXERCISABLE AT PRICES RANGING FROM
$2.4375 PER SHARE TO $3.00 PER SHARE. UNLESS THE CONTEXT OTHERWISE REQUIRES,
THE HOLDERS OF COMMON STOCK OR WARRANTS OR OPTIONS SELLING SHARES HEREUNDER ARE
HEREINAFTER COLLECTIVELY REFERRED TO AS THE "SELLING SHAREHOLDERS." SEE
"SELLING SHAREHOLDERS." THE COMPANY IS NOT OFFERING ANY SHARES FOR SALE
HEREUNDER. THE COMPANY WILL NOT RECEIVE ANY OF THE PROCEEDS FROM THE SHARES
SOLD BY THE SELLING SHAREHOLDERS.
THE COMMON STOCK IS QUOTED ON THE NASDAQ SMALL-CAP MARKET SYSTEM UNDER THE
SYMBOL "WGNR." THE LAST SALE PRICE OF THE COMMON STOCK ON SEPTEMBER 20, 1995 AS
REPORTED ON THE NASDAQ SMALL-CAP MARKET SYSTEM WAS $11.50 PER SHARE. SEE
"PRICE RANGE OF COMMON STOCK."
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE
CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY.
------------------------
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.
<TABLE>
<CAPTION>
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PROCEEDS TO
PRICE TO UNDERWRITING SELLING PROCEEDS TO
PUBLIC DISCOUNT SHAREHOLDERS(1) COMPANY
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<S> <C> <C> <C> <C>
PER SHARE(2) ...... SEE TEXT SEE TEXT SEE TEXT
BELOW BELOW BELOW $0
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TOTAL.............. SEE TEXT SEE TEXT SEE TEXT
BELOW BELOW BELOW $0
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(1) THE SELLING SHAREHOLDERS HAVE ADVISED THE COMPANY THAT THEY PROPOSE TO
OFFER FOR SALE AND TO SELL THE COMMON STOCK FROM TIME TO TIME UNTIL
SEPTEMBER _____, 1997 THROUGH BROKERS IN THE OVER-THE-COUNTER MARKET, IN
PRIVATE TRANSACTIONS, AND OTHERWISE, AT MARKET PRICES THEN PREVAILING OR
OBTAINABLE. ACCORDINGLY, SALES PRICES AND PROCEEDS TO THE SELLING
SHAREHOLDERS WILL DEPEND UPON PRICE FLUCTUATIONS AND THE MANNER OF SALE.
IF THE COMMON STOCK IS SOLD THROUGH BROKERS, THE SELLING SHAREHOLDERS WILL
PAY BROKERAGE COMMISSIONS AND OTHER CHARGES (WHICH COMPENSATION AS TO A
PARTICULAR BROKER-DEALER MAY BE IN EXCESS OF CUSTOMARY COMMISSIONS).
EXCEPT FOR THE PAYMENT OF SUCH BROKERAGE COMMISSIONS AND CHARGES AND THE
LEGAL FEES, IF ANY, OF THE SELLING SHAREHOLDERS, THE COMPANY WILL BEAR ALL
EXPENSES IN CONNECTION WITH REGISTERING THE SHARES OFFERED HEREBY. SUCH
EXPENSES ARE ESTIMATED TO TOTAL APPROXIMATELY $24,000. SEE "PLAN OF
DISTRIBUTION."
THIS PROSPECTUS ALSO RELATES TO SUCH ADDITIONAL SHARES AS MAY BE ISSUED TO
THE SELLING SHAREHOLDERS BECAUSE OF FUTURE STOCK DIVIDENDS, STOCK
DISTRIBUTIONS, STOCK SPLITS, OR SIMILAR CAPITAL READJUSTMENTS.
</TABLE>
THE DATE OF THIS PROSPECTUS IS SEPTEMBER ____, 1995
<PAGE>
AVAILABLE INFORMATION
The Company is subject to certain informational requirements of the
Securities Exchange Act of 1934 (the "1934 Act") and, in accordance therewith,
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Such reports and other information can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's
regional offices located at 7 World Trade Center, 13th Floor, New York, New York
10048 and Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois
60661. Copies of such material can also be obtained at prescribed rates by
writing to the Securities and Exchange Commission, Public Reference Section, 450
Fifth Street, N.W., Washington, D.C. 20549. In addition, such reports, proxy
statements and other information concerning the Company may be inspected at the
offices of the National Association of Securities Dealers, Inc., 1735 K Street,
N.W., Washington, D.C. 20006-1506.
The Company has filed a Registration Statement on Form S-3 (together with
all amendments and exhibits filed or to be filed in connection therewith, the
"Registration Statement") under the Securities Act of 1933, as amended, with
respect to the Common Stock offered hereby. This Prospectus does not contain
all 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 herein concerning the provisions of documents
are necessarily summaries of such documents, and each statement is qualified in
its entirety by reference to the copy of the applicable document filed with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Commission pursuant to
the 1934 Act are hereby incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended
September 2, 1994;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
December 2, 1994;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 3, 1995;
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 2, 1995; and
5. The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A of Telecrafter Corporation,
predecessor to the Company, Registration No. 0-11003 as filed with the
Securities and Exchange Commission on March 25, 1983.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of this offering shall be deemed to be incorporated by reference
into this Prospectus and to be a part hereof from the respective dates 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 Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
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 and superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a Prospectus
is delivered, upon written or oral request of such person, a copy of any and all
of the information that has been incorporated by reference in this Prospectus
(excluding exhibits unless such exhibits are specifically incorporated by
reference into such documents). Please direct such requests to the Secretary,
Wegener Corporation, 11350 Technology Circle, Duluth, Georgia 30136, telephone
number (770) 623-0096.
2
<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS, THE
FOLLOWING FACTORS SHOULD BE CONSIDERED CAREFULLY IN EVALUATING THE COMPANY AND
ITS BUSINESS BEFORE PURCHASING ANY OF THE SHARES OF COMMON STOCK OFFERED HEREBY.
WORKING CAPITAL REQUIREMENTS; NEED FOR ADDITIONAL FINANCING. The Company
will require additional capital or other financing to finance its operations and
continued growth. The Company may seek additional equity financing through the
issuance of Common Stock upon the exercise of outstanding warrants and options
or through the sale of securities on a public or a private placement basis on
such terms as are reasonably attainable. There can be no assurance that the
Company will be able to obtain such financing when needed, or that if obtained,
it will be sufficient or on terms and conditions acceptable to the Company.
NO HISTORY OF PROFITABILITY. For the past five fiscal years, the Company
has not reported any profits for a full year of operations. As a consequence,
the Company had an accumulated deficit of $2,909,423 at the end of the fiscal
year ended September 2, 1994. The deficit was $2,934,389 at June 2, 1995.
There can be no certainty regarding the Company's ability to achieve or sustain
profitability in the future. Whether or not the Company is able to operate
profitably, the Company will require additional capital to finance its
operations. Management believes that the Company's ability to continue
operations is dependent upon successfully obtaining additional funds through
debt or equity financing to provide working capital and other funds for
operations, and ultimately, the achievement of sustained profitability. There
can be no assurance that the Company will be successful in achieving these
goals.
TECHNOLOGICAL CHANGE AND NEW PRODUCTS. The market for the Company's
products is characterized by rapidly changing technology, evolving industry
standards and frequent product introductions. Product introductions are
generally characterized by increased functionality and better quality, sometimes
at reduced prices. The introduction of products embodying new technology may
render existing products obsolete and unmarketable. The Company's ability to
successfully develop and introduce on a timely basis new and enhanced products
that embody new technology, and achieve levels of functionality and price
acceptable to the market will be a significant factor in the Company's ability
to grow and to remain competitive. If the Company is unable, for technological
or other reasons, to develop competitive products in a timely manner in response
to changes in the industry, the Company's business and operating results will be
materially and adversely affected.
CONCENTRATION OF CUSTOMERS. The Company sells to a variety of domestic and
international customers on an open-unsecured account basis. The customers
principally operate in the cable television, broadcast business music, private
network and data communications industries. One customer accounted for 18.6% of
revenues in fiscal 1994, 13.3% of revenues in fiscal 1993, and 15.2% of revenues
in fiscal 1992. Sales to a relatively small number of major customers have
typically comprised a majority of the Company's revenues. This trend is
expected to continue, and there can be no assurance that the loss of one or more
of these customers would not have an adverse effect on the Company's operations.
DEPENDENCE ON MANAGEMENT AND KEY EMPLOYEES. The Company's development,
management of its growth and other activities depend on the efforts of key
management and technical employees, and, in particular, Robert A. Placek and C.
Troy Woodbury, Jr., the President and Chief Executive Officer and Treasurer and
Chief Financial Officer, respectively. Competition for such persons is intense.
The Company uses incentives, including competitive compensation and stock option
plans, to attract and retain well-qualified employees. There can be no
assurance, however, that the Company will continue to attract and retain
personnel with the requisite capabilities and experience. The loss of one or
more of the
3
<PAGE>
Company's key management or technical personnel also could adversely affect the
Company. The Company does not have employment agreements with its key
management personnel or technical employees. The Company's future success is
also dependent upon its ability to effectively attract, retain, train, motivate
and manage its employees. Failure to do so could have a material adverse effect
on the Company's business and operating results.
COMPETITION. Although the Company believes that its competitive position
for the Company's products is dominant in the cable television market and is
stable in the market for its broadcast television electronics products, the
competition for radio network products, including the Company's digital audio
products, is very aggressive and pricing is very competitive. The Company's
continued success in these markets will depend on aggressive marketing and
product development.
In addition, the competitive situation for data products is significantly
different than that of cable television, and radio and television broadcasting
products. Due to the large number of potential end users, both small and large
competitors are expected to emerge. Although the Company believes it has
positioned itself to capitalize on the market trends in this business through
careful development of its product and market strategies, there can be no
assurance that the Company will be successful in gaining market share in this
sector.
NO ASSURANCE OF CONTINUED TRADING MARKET IN COMPANY SECURITIES. The
Company's Common Stock is traded on the Nasdaq SmallCap Market. There is no
assurance that a public market for the Company's Common Stock will continue to
be made or that persons purchasing the Company's securities will be able to
avail themselves of a public trading market for the Common Shares in the future.
There can be no assurance that the Company will remain in compliance with
Nasdaq's continued listing requirements. If the Common Stock is delisted by
Nasdaq, the trading market for the Common Stock will be adversely affected, as
price quotations for the Common Stock will not be as readily obtainable.
VOLATILITY OF STOCK PRICE. The Company's Common Stock has experienced
substantial price volatility and such volatility may occur in the future,
particularly as a result of quarter to quarter variations in the actual or
anticipated financial results of the Company or other companies in the satellite
communications industry or in the markets served by the Company. These and
other factors may adversely affect the market price of the Common Stock.
NO DIVIDENDS. The Company has never paid cash dividends on its Common
Stock and has no plans to pay cash dividends in the foreseeable future. The
policy of the Company's Board of Directors is to retain all available earnings
for use in the operation and expansion of the Company's business.
4
<PAGE>
THE COMPANY
Wegener Corporation (the "Company"), was formed in 1977 and is a Delaware
corporation. The Company conducts its continuing business through Wegener
Communications, Inc. (WCI), its wholly-owned subsidiary, and Wegener
Communications International, Inc., a wholly-owned subsidiary of WCI. The
Company's principal executive offices are located at 11350 Technology circle,
Duluth, Georgia 30136 and its telephone number is (404) 623-0096.
WCI was formed in April 1978 and is a Georgia corporation. Its wholly-
owned subsidiary, Wegener Communications International, Inc., is a Small Foreign
Sales Corporation. WCI manufacturers and distributes satellite communications
electronics to cable television operators, radio and television broadcasters,
the business music industry and to private network systems. Products are sold
in international and domestic markets.
SATELLITE COMMUNICATIONS ELECTRONICS. WCI manufacturers electronics for the
cable television, broadcast, business music, private network and data
communications industries. WCI services all of the products that it sells.
WCI manufacturers primarily high volume standard products. During fiscal
1994, the Company divested its low volume custom products operations and entered
into a distributor agreement for the sale of these products.
During fiscal 1995, WCI is continuing to produce and develop digital
compression products. These products are in use worldwide in radio, cable
television, and private business networks. In terms of new orders, compressed
digital audio products are the fastest growing product segment for the Company.
Orders for the Company's digital video products are currently very strong and
will more than compensate for other areas which are being impacted due to shifts
in technology. As expected, demand for the Company's analog products have begun
to decline following market demand for, and the Company's emphasis on, digital
technology.
DIGITAL COMMUNICATIONS. With ongoing breakthroughs in digital compression,
digitized audio and video products have become increasingly important. In 1995,
WCI began delivering its digital video products under a multi-year, multi-
million dollar contract with Foundation Telecommunications, Inc. (FTI). FTI is
using the WCI products to deliver distance learning programming to universities.
Also announced in 1995 were orders from Dow Jones Investor Network and NBC
Desktop Video for digital video products for use in subscription-based business
information networks which deliver compressed video to PCs.
WCI will manufacture broadcast quality digital video products for
commercial program distribution under a licensing agreement with COMSAT
Laboratories. The first orders have been received for these products with
deliveries scheduled for the first half of fiscal 1996.
Orders for WCI's digital audio products were received for new networks in
Spain, France, Mexico, Colombia, Brazil, Finland, Germany, Belgium, Switzerland,
Singapore, and the United States.
The Company's data communications product bookings are also very strong in
fiscal 1995. WCI manufactures satellite data receivers for Glenayre
Technologies which are used to expand Glenayre's paging network. Reuters also
chose WCI data equipment to expand distribution for its international news feed.
5
<PAGE>
CABLE TELEVISION PRODUCTS. Manufactured products are widely employed in the
cable industry to provide a variety of audio, data, and video services to cable
subscribers. These products deliver high quality video and stereo sound to
cable headends via satellite. This includes transmission of stereo sound
associated with cable television programming, discrete audio-only services
provided to cable systems, automated program delivery for regional sports
networks, and distribution of pay-per-view movies.
A wide variety of data transmission products are used to deliver
specialized data services to cable headends and subscribers. These applications
range from data to feed news services, weather and program guide graphics,
delivery to personal computers, and control of cable subscribers' addressable
converters.
Other cable products are cue and control equipment for cable television
networks. Cueing signals are used on advertising supported networks to permit
affiliated cable systems to insert local commercials at appropriate times.
Control equipment delivers switching commands from the network to provide
program routing and blackouts.
An additional product family of the cable television segment is graphic
generators. These products deliver custom data by satellite that is graphically
displayed on a subscriber's television. Products in this area were among the
first generated by WCI. WCI has continued to add new products to this family to
meet market demand.
RADIO AND TELEVISION BROADCASTING. Broadcasters use WCI equipment to distribute
digital audio, analog audio, video, and cue/network control signals. Satellite
based radio networks use WCI products to provide program audio and remote
control of affiliate stations. Television networks use WCI products to deliver
video, stereo sound, and data, as well as network management. Television
stations use audio and data products for terrestrial microwave and fiber optic
studio-to-transmitter links.
OPTICAL FIBER AND TERRESTRIAL MICROWAVE. Most of WCI's products used on
satellite communications links are easily used on existing microwave or fiber
circuits. Typical applications are voice and data circuits that accompany a
television signal.
BUSINESS MUSIC. This market consists of suppliers of business music to retail
restaurants, offices and retail establishments. WCI manufactures the equipment
required to transmit audio and data from the business music supplier to the end
user via satellite circuits. The equipment is controlled by the business music
supplier using WCI's network control technology. Potential users of this WCI
equipment include any business purchasing background music, foreground music or
broadcast data. Success in this market will be determined by the capability of
WCI to increase its production capability and to continue to reduce the
manufacturing costs of receiver equipment.
USE OF PROCEEDS
All of the shares of the Common Stock offered hereby are being offered and
sold by the Selling Shareholders. Accordingly, the Company will not receive any
of the proceeds from such sales.
6
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth information regarding the beneficial
ownership of the Common Stock of the Company as of August 31, 1995 and as
adjusted to reflect the sale of shares offered hereby, with respect to the
Selling Shareholders.
<TABLE>
<CAPTION>
BENEFICIAL
OWNERSHIP NUMBER OF BENEFICIAL
PRIOR TO THE SHARES OWNERSHIP
OFFERING TO BE SOLD AFTER THE OFFERING
----------------- ------------------
NAME OF BENEFICIAL OWNER SHARES PERCENT IN THE OFFERING SHARES PERCENT
------------------------ ------ ------- --------------- ------- -------
<S> <C> <C> <C> <C> <C>
Thomas Stafford 130,000 1.5% 75,000 55,000 *
James H. Morgan, Jr.(1) 59,000(2) * 25,000 34,000(2) *
AT&T Corporation 265,000 3.0% 265,000 0 -
Clearwater Small Cap Value Fund 76,600 * 50,000 26,600 *
Monsanto Master Fund 75,300 * 50,000 25,300 *
Andrew E. Gold 25,000 * 25,000 0 -
Paresco, Inc. 225,000 2.6% 225,000 0 -
Richard Sinise 50,000 * 50,000 0 -
Washington University 59,700 * 41,000 18,700 *
Newell Company 80,000 * 80,000 0 -
Fairfax County Public School 100,000 1.2% 100,000 0 -
Burlington Northern, Inc. 40,000 * 40,000 0 -
Tracor, Inc. 18,700 * 8,400 10,300 *
SUPERVALU, Inc. 50,280 * 9,000 41,280 *
Burroughs Wellcome Co. 34,200 * 20,000 14,200 *
Inter-Regional Financial Group 36,800 * 30,000 6,800 *
Robinson Companies Profit
Sharing Trust 26,000 * 26,000 0 -
City of Pontiac, Michigan Police
& Fire Retirement System 80,000 * 80,000 0 -
RR Donnelley & Sons 60,000 * 30,000 30,000 *
Pension Reserves Investment
Management Board 70,600 * 70,600 0 -
The Kaufmann Fund, Inc. 393,000 4.5% 393,000 0 -
Jonathan Art 7,000 * 7,000 0 -
Desmond Towey & Associates(3) 27,000(4) * 27,000 0 -
Andrew E. Gold 11,250(5) * 11,250 0 -
Mitchell A. Metzman 11,250(5) * 11,250 0 -
Steven T. Newby 22,500(5) * 22,500 0 -
____________________
* Less than 1%.
(1) Mr. Morgan is a director of the Company, and is a partner of Smith,
Gambrell & Russell, counsel to the Company, which receives legal fees for
services rendered.
(2) Includes 6,000 shares subject to non-qualified stock options.
(3) Desmond Towey & Associates provides ongoing shareholder relations services
to the Company.
(4) These shares represent shares underlying a non-qualified stock option.
(5) These shares represent shares underlying Common Stock
purchase warrants.
</TABLE>
7
<PAGE>
PLAN OF DISTRIBUTION
Of the 1,772,000 shares of Common Stock being offered hereby for the
benefit of the Selling Shareholders, 1,700,000 shares were originally issued by
the Company in private placements to "accredited investors" pursuant to
Regulation D promulgated by the Securities and Exchange Commission, which was
completed in August 1995, and 72,000 shares underlie warrants or options to
purchase Common Stock of the Company. The Company has agreed to register the
shares for resale by the Selling Shareholders. The Company will not receive any
of the proceeds from the sale of such shares by the Selling Shareholders.
The Selling Shareholders have advised the Company that they propose to
offer for sale and to sell Common Stock from time to time during the next
twenty-four months through brokers in the over-the-counter market, in private
transactions, or otherwise, at market prices prevailing at the time of sale or
at prices and terms then obtainable, in block transactions, negotiated
transactions, or otherwise. Accordingly, sales prices and proceeds to the
Selling Shareholders will depend upon market price fluctuations and the manner
of sale.
If the shares are sold through brokers, the Selling Shareholders will pay
brokerage commissions and other charges, including any transfer taxes (which
compensation as to a particular broker-dealer might be in excess of customary
commissions). The Selling Shareholders will also pay the fees and expenses of
any counsel retained by them in connection with this offering. Except for the
payment of such legal fees and expenses, brokerage commissions and charges, the
Company will bear all expenses in connection with registering the shares offered
hereby, which registration expenses are estimated to total approximately
$24,000.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Smith, Gambrell & Russell, Atlanta, Georgia.
EXPERTS
The financial statements and schedules incorporated by reference in this
Prospectus have been audited by BDO Seidman, LLP, independent certified public
accountants, to the extent and for the periods set forth in their reports
incorporated herein by reference, and are incorporated herein in reliance upon
such reports given upon the authority of said firm as experts in accounting and
auditing.
8
<PAGE>
NO DEALER, REPRESENTATIVE OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE 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
SHAREHOLDERS OR BY THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OFFERED HEREBY BY
ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED
OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
________________________
TABLE OF CONTENTS
________________________
<TABLE>
<CAPTION>
PAGE
<S> <C>
AVAILABLE INFORMATION . . . . . . . . 2
INCORPORATION OF CERTAIN
DOCUMENTS BY REFERENCE . . . . 2
RISK FACTORS . . . . . . . . . . . . 3
THE COMPANY . . . . . . . . . . . . 5
USE OF PROCEEDS . . . . . . . . . . . 6
SELLING SHAREHOLDERS . . . . . . . . 7
PLAN OF DISTRIBUTION . . . . . . . . 8
LEGAL MATTERS . . . . . . . . . . . . 8
EXPERTS . . . . . . . . . . . . . . 8
1,772,000 Shares
</TABLE>
WEGENER
CORPORATION
COMMON STOCK
_____________________
PROSPECTUS
_____________________
SEPTEMBER _____ , 1995
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below are estimates of the fees and expenses payable by the
Registrant in connection with the offer and sale of the Common Stock:
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee . . . . . . . . . . . $ 7,000
Blue Sky Qualification Fees and Expenses. . 500
Transfer Agent Fees . . . . . . . . . . . . 500
Printing, Materials, and Postage . . . . . 1,000
Legal Fees and Expenses . . . . . . . . . . 10,000
Accounting Fees and Expenses . . . . . . . 5,000
Miscellaneous Expenses . . . . . . . . . . -
-------
TOTAL . . . . . . . . . . . . . . . . $24,000
-------
-------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation and By-laws provide for
indemnification of directors and officers of the Company to the full extent
permitted by Delaware law.
Section 145 of the General Corporation Law of the State of Delaware
provides generally that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at its request in
such capacity in another corporation or business association, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
In addition, pursuant to the authority of Delaware law, the Certificate of
Incorporation of the Company also eliminates the monetary liability of directors
to the fullest extent permitted by Delaware law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed 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.
<PAGE>
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------------------------------
4.1 Loan and Security Agreement and Secured
Promissory Note dated June 21, 1994 by and
between Wegener Communications, Inc. and the
CIT Group/Credit Finance, Inc., respecting $4.5
million combined revolving credit note and term
note (incorporated by reference from the 1994
Annual Report on Form 10-K, Exhibit 4.1)
4.2 Loan Agreement, Promissory Note and Deed to
Secure Debt, and Security Agreement dated
February 27, 1987 between Bank South, N.A. and
Wegener Communications, Inc. respecting $3.5
million Promissory Note (incorporated by
reference from the 1990 Annual Report on Form
10-K, Exhibit 4.4)
5.1 Opinion of Smith, Gambrell & Russell
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Smith, Gambrell & Russell
(contained in their opinion filed as Exhibit 5.1
hereto)
ITEM 17. 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 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 orany material change to such
information in the Registration Statement.
PROVIDED, HOWEVER, that the undertakings set forth in
paragraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or
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 the 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 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.
<PAGE>
(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 provisions referred to in Item 15
above, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable ground to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Duluth, State of Georgia, on this 21st day of
September, 1995.
WEGENER CORPORATION
By: /s/ C. Troy Woodbury, Jr.
-------------------------
C. Troy Woodbury, Jr.
Treasurer and Chief Financial
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE APPEARS
BELOW CONSTITUTES AND APPOINTS ROBERT A. PLACEK AND C. TROY WOODBURY, JR., AND
EACH OF THEM, HIS TRUE AND LAWFUL ATTORNEY-IN-FACT AND AGENT, WILL FULL POWER OF
SUBSTITUTION AND RESUBSTITUTION, FOR HIM AND IN HIS NAME, PLACE AND STEAD, IN
ANY AND ALL CAPACITIES, TO SIGN ANY OR ALL AMENDMENTS (INCLUDING POST-EFFECTIVE
AMENDMENTS) TO THIS REGISTRATION STATEMENT, AND TO FILE THE SAME, WITH ALL
EXHIBITS THERETO, AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE
SECURITIES AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEY-IN-FACT AND
AGENT 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, AS FULLY TO ALL
INTENTS AND PURPOSES AS HE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND
CONFIRMING ALL THAT SAID ATTORNEY-IN-FACT AND AGENT OR HIS SUBSTITUTE OR
SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
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>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Robert A. Placek President and Chief September 21, 1995
------------------------------ Executive Officer
ROBERT A. PLACEK (Principal Executive Officer)
/s/ C. Troy Woodbury, Jr. Treasurer and Chief September 21, 1995
------------------------------ Financial Officer
C. TROY WOODBURY, JR. (Principal Financial and
Accounting Officer)
/s/ James H. Morgan, Jr. Director September 21, 1995
-------------------------------
JAMES H. MORGAN, JR.
/s/ Joe K. Parks Director September 21, 1995
-------------------------------
JOE K. PARKS
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION OF EXHIBIT PAGE NO.
------- ---------------------- ----------
5.1 Opinion of Smith, Gambrell & Russell
23.1 Consent of BDO Seidman, LLP
<PAGE>
EXHIBIT 5.1
September 20, 1995
Board of Directors
Wegener Corporation
11350 Technology Circle
Duluth, GA 30136
RE: Wegener Corporation
Registration Statement on Form S-3
1,772,000 Shares of Common Stock
--------------------------------
Gentlemen:
We have acted as counsel for Wegener Corporation (the "Company") in
connection with the proposed public offering of the shares of its Common Stock
covered by the above-described Registration Statement.
In connection therewith, we have examined the following:
(1) The Certificate of Incorporation of the Company, as amended, certified
by the Secretary of State of the State of Delaware;
(2) The Bylaws of the Company, certified as complete and correct by the
Secretary of the Company;
(3) The minute book of the Company, certified as correct and complete by
the Secretary of the Company; and
(4) Certificate of Good Standing with respect to the Company, issued by
the Delaware Secretary of State.
Based upon such examination and upon examination of such other instruments
and records as we have deemed necessary, we are of the opinion that:
<PAGE>
(A) The Company has been duly incorporated under the laws of the State of
Delaware and is validly existing and in good standing under the laws
of that state.
(B) The 1,772,000 shares of Common Stock covered by the Registration
Statement have been legally authorized and when issued in accordance
with the terms described in said Registration Statement, will be
validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to this firm under the caption "Legal Matters" in
the Prospectus. In giving this consent, we do not thereby admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Sincerely,
SMITH, GAMBRELL & RUSSELL
/s/ Helen T. Ferraro
Helen T. Ferraro
HTF:tlj
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Wegener Corporation
Duluth, Georgia
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our reports dated December
8, 1994, relating to the consolidated financial statements and schedules of
Wegener Corporation appearing in the Company's Annual Report on Form 10-K for
the year ended September 2, 1994.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO SEIDMAN, LLP
Atlanta, Georgia
September 22, 1995
