<PAGE> 1
As filed with the Securities and Exchange Commission on June 24, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
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 Identification
of incorporation or organization) Number)
11350 Technology Circle, Duluth, Georgia 30136
(Address of Principal Executive Offices) (Zip Code)
1988 INCENTIVE PLAN
(Full Title of the Plan)
ROBERT A. PLACEK
President and Chief Executive Officer
11350 Technology Circle
Duluth, Georgia 30136
(770) 623-0096
(Name, address, telephone number, including
area code, of agent for service)
----------------------
Copies Requested to:
Helen T. Ferraro, Esq.
Smith, Gambrell & Russell, LLP
3343 Peachtree Road, N.E.
Suite 1800, East Tower
Atlanta, Georgia 30326-1010
(404) 264-2620
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share(1) Price(1) Registration Fee
---------------- ---------- -------- -------- ----------------
<C> <C> <C> <C> <C>
Options and Shares of
$.001 par value 250,000 $2.59375 $648,438 $197
Common Stock Shares
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) based upon the average of the high and low
reported prices of the Common Stock on the Nasdaq Small Cap Market on
June 19, 1997.
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<PAGE> 2
This Registration Statement covers 250,000 additional shares of the
$.01 par value Common Stock of Wegener Corporation (the "Company") issuable
pursuant to the Company's 1988 Incentive Plan, as amended, for which a
previously filed Registration Statement on Form S-8 is effective. The contents
of the Company's earlier Registration Statement on Form S-8, File No. 33-45390,
as filed with the Securities and Exchange Commission on August 1, 1991, are
incorporated herein by reference.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are hereby incorporated by reference into
this Registration Statement, and all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities and Exchange
Act of 1934, prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents:
1. The Company's Annual Report on Form 10-K for the year ended
August 30, 1996;
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended November 29, 1996;
3. The Company's Quarterly Report on Form 10-Q for the quarter
ended February 28, 1997; and
4. 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 Commission on March 25, 1983.
ITEM 4. DESCRIPTION OF SECURITIES.
No response is required to this item.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No response is required to this item.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation and Bylaws 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.
<PAGE> 4
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No response to this Item is required.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference
into this Registration Statement. The exhibits which are denominated by an
asterisk (*) were previously filed as a part of, and are hereby incorporated by
reference from a Registration Statement on Form S-8 under the Securities Act of
1933, Registration No. 33-45390 (referred to as "S-8"). The exhibit number
corresponds to the exhibit number in the referenced document.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- -----------------------------------------------------------
<S> <C>
5.1 Opinion of Smith, Gambrell & Russell, LLP.
*10.1 Registrant's 1988 Incentive Plan, as amended (S-8).
10.1.1 Amendment No. 2 to 1988 Incentive Plan.
23.1 Consent of BDO Seidman LLP.
23.2 Consent of Smith, Gambrell & Russell, LLP (contained in
their opinion filed as Exhibit 5.1).
24.1 Powers of Attorney (contained on the signature page to this
Registration Statement).
</TABLE>
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
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;
(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.
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<PAGE> 5
(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 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 the time shall be deemed to be the initial bona fide offering thereof.
(h) 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 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-3
<PAGE> 6
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 Duluth, State of Georgia, on this 23rd day of June,
1997.
WEGENER CORPORATION
By: /s/ C. Troy Woodbury, Jr.
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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 attorneys-in-fact and agents, with
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,
including a Registration Statement filed under Rule 462(b) of the Securities Act
of 1993, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their 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, Chief June 23, 1997
- --------------------------------------------------------- Executive Officer and
Robert A. Placek Director
(Principal Executive Officer)
/s/ C. Troy Woodbury, Jr. Treasurer, Chief June 23, 1997
- ------------------------------------------------------- Financial Officer and
C. Troy Woodbury, Jr. Director
(Principal Financial and
Accounting Officer)
/s/ James H. Morgan, Jr. Director June 23, 1997
- -------------------------------------------------------
James H. Morgan, Jr.
/s/ Joe K. Parks Director June 23, 1997
- -------------------------------------------------------
Joe K. Parks
</TABLE>
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Exhibit Index
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ------------------------------------------------
<S> <C>
5.1 Opinion of Smith, Gambrell & Russell, LLP.
10.1.1 Amendment No. 2 to 1988 Incentive Plan.
23.1 Consent of BDO Seidman, LLP.
</TABLE>
<PAGE> 1
EXHIBIT 5.1
SMITH, GAMBRELL & RUSSELL, LLP LETTERHEAD
June 20, 1997
Board of Directors
Wegener Corporation
11350 Technology Circle
Duluth, Georgia 30155
RE: Wegener Corporation
Registration Statement on Form S-8
250,000 Shares of Common Stock
1988 Incentive Plan
Gentlemen:
We have acted as counsel for Wegener Corporation (the "Company") in
connection with the registration of 250,000 shares of its $.01 par value Common
Stock (the "Shares") reserved to the Company's 1988 Incentive Plan, as amended
(the "Plan") pursuant to a Registration Statement on Form S-8 to be filed with
the Securities and Exchange Commission pursuant to the Securities Act of 1933,
as amended (the "Act"), covering the Shares.
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;
(4) Certificate of Good Standing with respect to the Company, issued
by the Secretary of State of the State of Delaware; and
(5) The Registration Statement on Form S-8 to be filed with the
Securities and Exchange Commission pursuant to the Act (the
"Registration Statement").
<PAGE> 2
Board of Directors
Wegener Corporation
June 20, 1997
Page 2
Based upon such examination and upon examination of such other
instruments and records as we have deemed necessary, we are of the opinion that:
(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 250,000 Shares covered by the Registration Statement have
been legally authorized by the Company and when sold 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, LLP
/s/ Helen T. Ferraro
-------------------------------------
Helen T. Ferraro
<PAGE> 1
EXHIBIT 10.1.1
AMENDMENT NO. 2
1988 INCENTIVE PLAN
WEGENER CORPORATION
WHEREAS, the Board of Directors of Wegener Corporation (the "Company")
has previously adopted, as amended, and the stockholders of the Company have
approved, the 1988 Incentive Plan (the "Plan") pursuant to which incentive
awards may be granted to eligible officers and key employees of the Company; and
WHEREAS, the Board of Directors of the Company deems it desirable to
further amend the Plan as provided herein;
NOW, THEREFORE, the Plan is amended upon the terms, and subject to the
conditions, set forth herein:
ARTICLE I
AMENDMENT TO PLAN
1.1 Section 3 of the Plan shall be amended by deleting the first
sentence thereof in its entirety and substituting the following new sentence
therefor:
"The aggregate number of shares of Stock which may be
awarded under the Plan or subject to purchase by
exercising an Option shall not exceed 750,000
shares."
ARTICLE II
EFFECTIVE DATE OF AMENDMENT
2.1 The amendment effected hereby shall be effective for awards granted
under the Plan on or after the date this amendment is approved by the Board of
Directors of the Company, but subject to approval of a majority of the
stockholders of the Company entitled to vote thereon. In the event stockholder
approval of adoption of this amendment is not obtained within twelve months of
the date this amendment is approved by the Board of Directors of the Company,
then any award granted in the intervening period to eligible employees shall be
void.
<PAGE> 1
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 November
19, 1996, relating to the consolidated financial statements and schedule of
Wegener Corporation appearing in the Company's Annual Report on Form 10-K for
the year ended August 30, 1996.
We also consent to the reference to us under the caption "Experts" in
the Prospectus.
BDO SEIDMAN, LLP
Atlanta, Georgia
June 24, 1997
