As filed with the Securities and Exchange Commission on June 5, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ELEXSYS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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Delaware 95-3534864
(State of Incorporation) (I.R.S. Employer Identification No.)
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1188 Bordeaux Drive
Sunnyvale, California 94089
(Address and telephone number of principal executive offices)
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1996 Employee Stock Purchase Plan
1995 Stock Option Plan
1996 Non-Employee Directors' Stock Option Plan
(Full title of the plans)
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Milan Mandaric
President and Chief Executive Officer
Elexsys International, Inc.
1188 Bordeaux Drive
Sunnyvale, California 94089
(408) 743-5400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
James R. Jones, Esq.
Cooley Godward Castro Huddleson & Tatum
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(415) 843-5000
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<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
===================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Offering Price Per Aggregate Offering
to be Registered Amount to be Share (1) Price (1) Amount of
Registered Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $1.00) 1,450,000 $10.75 $15,587,500.00 $5,375.00
===================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c), based upon average of the
high and low prices of Registrant's Common Stock on May 31, 1996 as
reported on the NASDAQ National Market System.
===================================================================================================================================
</FN>
</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
ii.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Elexsys International, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 a part of this
registration statement from the date of the filing of such reports and
documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "Delaware
GCL") provides that a corporation may indemnify any persons, including directors
and officers, who are (or are threatened to be made) parties to any threatened,
pending or completed legal action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of their being directors or officers
of such corporation. The indemnity may include expenses, attorneys' fees,
judgments, fines and amounts paid in settlement, provided such sums were
actually and reasonably incurred in connection with such action, suit or
proceeding and provided the director or officer acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the
corporation's best interests and, in the case of criminal proceedings, he or she
had no reasonable cause to believe that his or her conduct was unlawful. The
corporation may indemnify directors and officers in a derivative action (in
which suit is brought by a stockholder on behalf of the corporation) under the
same conditions, except that no indemnification is permitted without judicial
approval if the director or officer is adjudged liable to the corporation. If
the director or officer is successful on the merits or otherwise in defense of
any such actions referred to above, the corporation must indemnify him or her
against the expenses and attorneys' fees he or she actually and reasonably
incurred.
Article VII of the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate"), provides a non-exclusive right of
indemnification by the Registrant of its officers and directors to the full
extent allowed under the Delaware GCL or, in the event that the law of a
jurisdiction other than Delaware applies, to the fullest extent of the laws of
such other jurisdiction.
Article VIII of the Certificate provides that a director shall not be
personally liable for monetary damages for breach of fiduciary duty as a
director, except that such provision shall not eliminate or limit a director's
liability for (i) any breach of duty of loyalty, (ii) actions or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) violations of Section 174 of the Delaware GCL (payment of unlawful
dividends and unlawful stock purchases or redemptions), or (iv) for any
transaction from which such director derived an improper personal benefit.
Article X of the Registrant's Amended and Restated Bylaws provides for
indemnification by the Registrant of its officers and directors to the full
extent permitted under applicable law. If a director of officer has been
successful on the
1.
<PAGE>
merits or otherwise in defense of any covered action, suit or proceeding or any
claim, issue or matter therein, such person shall be indemnified against expense
actually and reasonably incurred therewith, without the necessity of
authorization in the specific case. Any indemnification (unless order by a
court) shall be made only as authorized in the specific case upon a
determination that the director or officer has met the applicable standard of
conduct, which are the standards described above as required by Section 145 of
the Delaware GCL. The Registrant is entitled to require an undertaking by or on
behalf of an officer or director to repay amounts advanced in connection with
defending or investigating a threatened or pending proceeding prior to its final
disposition, if it shall ultimately be determined that such person is not
entitled to indemnification.
The Registrant has entered, or expects to enter, into Indemnification
Agreements (the "Indemnification Agreements") with each of its directors.
Pursuant to the Indemnification Agreements, the Registrant is required to
maintain directors' and officers' liability insurance comparable to that
obtained by comparable public companies, unless the Board of Directors
determines in good faith that such insurance is not reasonably available. Each
director is entitled to be indemnified by the Registrant to the full extent
permitted under the Delaware GCL and from all losses and expense incurred in
connection with an action taken or inaction omitted by such director in his
capacity as a director, except in connection with any claim (i) for the return
by the director of any illegal remuneration, (ii) for an accounting to recover
short-swing profits under Section 16(b) of the Exchange Act or similar state law
provisions, (iii) resulting from the director's knowingly fraudulent,
deliberately dishonest or intentional misconduct; or (iv) if such payment is not
permitted by applicable law.
The Registrant's officers and directors are covered by a directors' and
officers' liability insurance policy maintained by the Registrant. Under the
insurance policy the Registrant is entitled to be reimbursed for indemnity
payments that it is required or permitted to make to its directors and officers.
2.
<PAGE>
EXHIBITS
Exhibit
Number
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained
in Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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;
(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. Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3.
<PAGE>
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
4.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Sunnyvale, State of
California, on June 4, 1996.
ELEXSYS INTERNATIONAL, INC.
By: /s/ Milan Mandaric
----------------------------------------
Milan Mandaric
Title: Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Milan Mandaric and Michael S. Shimada,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and 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
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
connection therewith, 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 substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
II-1.
<PAGE>
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.
Signature Title Date
/s/ Milan Mandaric Chief Executive Officer and June 4, 1996
- ------------------------------- Chairman of the Board of
(Milan Mandaric) Directors (Principal Executive
Officer)
/s/ Michael S. Shimada Vice President, Finance, Chief June 4, 1996
- ------------------------------- Financial Officer and Secretary
(Michael S. Shimada) (Principal Financial and
Accounting Officer)
/s/ C. Bradford Jeffries Director June 4, 1996
- -------------------------------
(C. Bradford Jeffries)
/s/ Peter S. Jonas Director June 4, 1996
- -------------------------------
(Peter S. Jonas)
/s/ Roland G. Matthews Director June 4, 1996
- -------------------------------
(Roland G. Matthews)
/s/ Alan C. Mendelson Director June 4, 1996
- -------------------------------
(Alan C. Mendelson)
II-2.
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in
Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
EXHIBIT 5.1
June 4, 1996
Elexsys International, Inc.
1188 Bordeaux Drive
Sunnyvale, California 94089
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Elexsys International, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 1,450,000 shares of the
Company's Common Stock, $1.00 par value, (the "Shares") pursuant to its 1996
Employee Stock Purchase Plan, 1995 Stock Option Plan and 1996 Non-Employee
Directors' Stock Option Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectuses, your Amended and Restated Certificate of Incorporation and
By-laws, as amended, and such other documents, records, certificates, memoranda
and other instruments as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectuses, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
By: /s/ James R. Jones
---------------------------
James R. Jones
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our reports dated October 16, 1995 appearing in the annual report on
Form 10-K relating to the consolidated financial statements of Elexsys
International for the year ended September 30, 1995.
Deloitte & Touche LLP
Costa Mesa, California
June 3, 1996
