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As filed with the Securities and Exchange Commission on July 31, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VIRCO MFG. CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 95-1613718
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2027 HARPERS WAY 90501
TORRANCE, CALIFORNIA (Zip Code)
(Address of Principal Executive Offices)
1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
ROBERT A. VIRTUE
CHIEF EXECUTIVE OFFICER
VIRCO MFG. CORPORATION
2027 HARPERS WAY
TORRANCE, CALIFORNIA 90501
(310) 633-0474
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
RUSSELL C. HANSEN, ESQ.
GIBSON, DUNN & CRUTCHER LLP
2029 CENTURY PARK EAST, SUITE 4000
LOS ANGELES, CALIFORNIA 90067-3026
(310) 552-8500
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CALCULATION OF REGISTRATION FEE
- ------------------------------ ----------------------- ------------------------ ------------------------ --------------------
PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
- ------------------------------ ----------------------- ------------------------ ------------------------ --------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share. . . . . . . . . 300,000 N/A $8,718,750 $2,643
- ------------------------------ ----------------------- ------------------------ ------------------------ --------------------
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(1) All of the 300,000 shares of Common Stock being registered hereunder are
reserved for issuance pursuant to the 1997 Stock Incentive Plan (the "1997
Plan"). Pursuant to Rule 416, there also is being registered such number
of additional shares of Common Stock which may become available for
issuance pursuant to the foregoing 1997 Plan in the event of certain
changes in outstanding shares, including reorganizations,
recapitalizations, stock splits, stock dividends and reverse stock splits.
(2) Estimated solely for the purpose of calculating the registration fee. The
registration fee has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933 based upon the average price of the Common
Stock on July 25, 1997, which was $29.0625.
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to
Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed
with the Securities and Exchange Commission (the "Commission") are hereby
incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report or latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Securities Act"), that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been
filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
the end of the fiscal year covered by Registrant's prospectus referred
to in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Registrant's registration
statement on Form 8-B, filed with the Commission on August 14, 1984,
File No. 00108777, together with any amendment or report filed with the
Commission for the purpose of updating such description.
All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the date of filing
of such reports and documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein
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modifies or supersedes such earlier statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the
"DGCL") makes provision for the indemnification of officers, directors and
employees of a corporation under certain conditions and subject to certain
limitations. The Registrant's Bylaws provide that the Registrant shall 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 a
director, officer, employee or agent of the Registrant or is or was serving at
the request of the Registrant (including in connection with an employee benefit
plan) as a director, officer, employee or agent of another corporation or
enterprise. Depending upon the character of the proceeding, under Delaware law
and pursuant to the Registrant's Bylaws, the Registrant may indemnify against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with any action, suit
or proceeding (and, under certain circumstances, make advances for such
expenses) if the Board of Directors determines that the person indemnified acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, had no cause to believe his or her conduct was
unlawful. To the extent that a director or officer of the Registrant has been
successful in the defense of any action, suit or proceeding referred to above,
the Registrant would have the right to indemnify him or her against expenses
(including attorneys' fees) actually and reasonably incurred in connection
therewith.
Under Section 102(b)(7) of the DGCL, a corporation may relieve
its directors from personal liability to such corporation or its stockholders
for monetary damages for any breach of fiduciary duty as directors except (i)
for a breach of the duty of loyalty, (ii) for failure to act in good faith,
(iii) for intentional misconduct or knowing violation of law, (iv) for willful
or negligent violations of certain provisions in the DGCL imposing certain
requirements with respect to stock repurchases, redemptions and dividends, or
(v) for any transactions from which the director derived an improper personal
benefit. Article XIX of the Registrant's Certificate of Incorporation provides
that, to the fullest extent permitted by the DGCL, a director of the Registrant
shall not be liable to the Registrant or its stockholders for monetary damages
for breach of fiduciary duty as director.
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The Registrant also maintains a liability insurance policy
that insures directors and officers against certain liabilities incurred by them
in their capacities as such, or arising out of their status as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by
reference to another filing of the Registrant with the Commission, each of the
following exhibits is filed herewith:
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5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5).
23.2 Consent of Ernst & Young LLP (independent auditors).
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ITEM 9. 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 and of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
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;
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provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) 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 Exchange Act that are
incorporated by reference in this 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 therein,
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 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.
(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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies
that it has reasonable grounds to believe that it meets all the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, there-unto duly authorized, in the City of
Torrance, State of California, on this 31st day of July, 1997.
VIRCO MFG. CORPORATION
By: /s/ ROBERT A. VIRTUE
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Robert A. Virtue
Chief Executive Officer and
Chairman of the Board of Directors
Each person whose signature appears below constitutes and appoints Robert A.
Virtue and James R. Braam, and each of them, his true and lawful
attorney-in-fact, each with full power of substitution and resubstitution,
severally, 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 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.
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Signature Title Date
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/s/ ROBERT A. VIRTUE Chief Executive Officer and July 31, 1997
- ---------------------------------------------- Chairman of the Board of Directors
Robert A. Virtue (Principal Executive Officer)
/s/JAMES R. BRAAM Vice President -- Finance, July 31, 1997
- ---------------------------------------------- Secretary and Treasurer
James R. Braam (Principal Financial Officer)
/s/ ROBERT E. DOSE Corporate Controller July 31, 1997
- ---------------------------------------------- (Principal Accounting Officer)
Robert E. Dose
/s/ DONALD S. FRIESZ Director July 31, 1997
- ----------------------------------------------
Donald S. Friesz
/s/ GEORGE W. OTT Director July 31, 1997
- ----------------------------------------------
George W. Ott
/s/ DONALD A. PATRICK Director July 31, 1997
- ----------------------------------------------
Donald A. Patrick
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<TABLE>
<S> <C> <C>
/s/ JOHN H. STAFFORD Director July 31, 1997
- ----------------------------------------------
John H. Stafford
/s/ HUGH D. TYLER Director July 31, 1997
- ----------------------------------------------
Hugh D. Tyler
/s/ DOUGLAS A. VIRTUE Director July 31, 1997
- ----------------------------------------------
Douglas A. Virtue
/s/ RAYMOND W. VIRTUE Director July 31, 1997
- ----------------------------------------------
Raymond W. Virtue
/s/ JAMES R. WILBURN Director July 31, 1997
- ----------------------------------------------
James R. Wilburn
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on the signature pages of this Registration Statement).
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Exhibit 5
July 31, 1997
C 94024-00053
Virco Mfg. Corporation
2027 Harpers Way
Torrance, California 90501
Re: Proposed Offering of up to 300,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to an aggregate of 300,000 shares of Common Stock, par value
$.01 per share, of Virco Mfg. Corporation, a Delaware corporation (the
"Company"), which are the subject of a registration statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"). The shares of Common Stock (the "Shares") subject to the Registration
Statement are to be issued under the Company's 1997 Stock Incentive Plan (the
"Plan").
We have examined the original, or a photostatic or certified copy, of
such records of the Company, certificates of officers of the Company and of
public officials and such other documents as we have determined relevant and
necessary as the basis for the opinion set forth below. In such examination, we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon our examination mentioned above, we are of the opinion that
the Shares have been validly authorized for issuance and, when issued and sold
in accordance with the terms set forth in the Registration Statement and the
Plan, and, when (a) the Registration Statement has become effective under the
Act, (b) the pertinent provisions of any applicable state securities law have
been complied with, and (c) in the case of options issued under the Plan, the
Shares have been paid for, the Shares so issued will be legally issued and will
be fully paid and nonassessable.
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Virco Mfg. Corporation
July 31, 1997
Page 2
We consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm appearing on the cover
of the Registration Statement. In giving this consent, we do not admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the General Rules and Regulations of the Commission.
Very truly yours,
/s/
GIBSON, DUNN & CRUTCHER LLP
RCH/LYK
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Stock Incentive Plan of Virco Mfg. Corporation of
our report dated March 12, 1997, with respect to the consolidated financial
statements of Virco Mfg. Corporation incorporated by reference in its Annual
Report (Form 10-K) for the year ended January 31, 1997 and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Los Angeles, California
July 31, 1997
