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As filed with the Securities and Exchange Commission on October 6, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
REMEC, INC.
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(Exact Name of Registrant as Specified in its Charter)
California 95-3814301
- ------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
9404 Chesapeake Drive, San Diego, California 92123
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(Address of Principal Executive Offices)
Equity Incentive Plan
Employee Stock Purchase Plan
------------------------------
(Full Title of the Plan)
Ronald E. Ragland, Chairman of the Board and Chief Executive Officer
9404 Chesapeake Drive
San Diego, California 92123
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(Name and Address of Agent For Service)
(619) 560-1301
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(Telephone number, including area code, of agent for service)
Copy to: Victor A. Hebert, Esq.
Heller Ehrman White & McAuliffe
333 Bush Avenue
San Francisco, California 94104
(415) 772-6000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered (1)(2) share (3) price fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 3,075,000 $35.75 $109,931,250 $33,312.50
======================================================================================================================
</TABLE>
(1) The shares covered by this Registration Statement represent the shares of
Common Stock which have become available for issuance under the
Registrant's Equity Incentive Plan and Employee Stock Purchase Plan as a
result of amendments to such plans approved by the stockholders at the
Registrant's Annual Meeting of Stockholders held on June 6, 1997.
(2) Includes an indeterminate number of additional shares that may be issued to
adjust the number of shares issued pursuant to such employee benefit plans
as the result of any future stock split, stock dividend or similar
adjustment of the Registrant's outstanding common stock.
(3) Estimated solely for the purpose of computing the amount of registration
fee pursuant to Rule 457(c) under the Securities Act, as amended, based on
the last sale reported of the Registrant's Common Stock on the Nasdaq
National Market on October 2, 1997.
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STATEMENT UNDER GENERAL INSTRUCTION E
REGISTRATION OF ADDITIONAL SECURITIES
Unless otherwise noted herein, the contents of the Registrant's Form
S-8 Registration Statement (File No. 333-4224) is incorporated by reference into
this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the
Securities and Exchange Commission (the "Commission") by the registrant are
incorporated by reference in this registration statement:
(a) The registrant's latest annual report (Form 10-K) filed
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the 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;
(b) All other fiscal reports filed by the registrant pursuant
to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report or prospectus referred to (a) above; and
(c) The description of the Common Stock of the registrant
contained in the registration statement filed under the Exchange Act registering
such Common Stock under Section 12 of the Exchange Act.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold should
be deemed to be incorporated by reference in this registration statement and to
be part thereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant has the power to indemnify its officers and
directors against liability for certain acts pursuant to Section 317 of the
California Corporations Code. Articles Fourth and Fifth of the registrant's
Restated Articles of Incorporation provide as follows:
"Fourth: The liability of directors of this
Corporation for monetary damages shall be eliminated to the fullest extent
permissible under California law.
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"Fifth: This Corporation is authorized to provide
indemnification of agents (as defined in Section 317 of the California
Corporations Code) for breach of duty to this Corporation and its shareholders
through bylaw provisions, or through agreements with the agents, or otherwise,
in excess of the indemnification otherwise permitted by Section 317 of the
California Corporations Code, subject to the limits on such excess
indemnification set forth in Section 204 of the Code."
In addition, Article V of the registrant's Bylaws provides
that the registrant shall indemnify its directors and executive officers to the
fullest extent not prohibited by California Corporations Code and provides for
the advancement of expenses upon a receipt of an undertaking to repay such
amounts if the person is determined ultimately not to be entitled to
indemnification.
The registrant has entered into Indemnification Agreements
with its officers and directors.
ITEM 8. EXHIBITS
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe (filed as part of
Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (see pages 5 and 6)
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;
(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;
(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 A(1)(i) and A(1)(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 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registrations statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act 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 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 Securities 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 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 San Diego, State of California, on October 3, 1997.
REMEC, INC.
By: /s/ RONALD E. RAGLAND
----------------------------------------
Ronald E. Ragland, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Errol Ekaireb and
Thomas A. George, or either of them, with full power of substitution, such
person's true and lawful attorneys-in-fact and agents for such person in such
person's name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8 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 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 in order to effectuate the same as fully, to all intents and
purposes, as he or such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ RONALD E. RAGLAND Chairman of the Board, October 3, 1997
- ---------------------------------- and Chief Executive
Ronald E. Ragland Officer and Director
(Principal Executive
Officer)
/s/ ERROL EKAIREB President and Chief October 3, 1997
- ---------------------------------- Operating Officer and
Errol Ekaireb Director
/s/ THOMAS A. GEORGE Chief Financial Officer, October 3, 1997
- ---------------------------------- Senior Vice President,
Thomas A. George and Secretary (Principal
Financial and Accounting
Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ JACK A. GILES Executive Vice President, October 3, 1997
- ---------------------------------- President of REMEC
Jack A. Giles Microwave Division and
Director
/s/ DENNY MORGAN Senior Vice President, October 3, 1997
- ---------------------------------- Chief Engineer and
Denny Morgan Director
/s/ JOSEPH T. LEE Executive Vice President October 3, 1997
- ---------------------------------- and Director
Joseph T. Lee
/s/ THOMAS A. CORCORAN Director October 3, 1997
- ----------------------------------
Thomas A. Corcoran
/s/ WILLIAM H. GIBBS Director October 3, 1997
- ----------------------------------
William H. Gibbs
/s/ ANDRE R. HORN Director October 3, 1997
- ----------------------------------
Andre R. Horn
/s/ GARY L. LUICK Director October 3, 1997
- ----------------------------------
Gary L. Luick
Director October __, 1997
- ----------------------------------
Jeffrey M. Nash
</TABLE>
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Index to Exhibits
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<TABLE>
<CAPTION>
Sequentially
Item No. Description of Item Numbered Page
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<S> <C>
5 Opinion of Heller Ehrman White & McAuliffe 9
23.1 Consent of Heller Ehrman White & McAuliffe (filed as part of
Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors 12
24 Power of Attorney (see pages 6 and 7)
</TABLE>
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EXHIBIT 5
October 3, 1997
REMEC, Inc.
9404 Chesapeake Drive
San Diego, California 92123
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to REMEC, Inc., a California corporation (the
"Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") which the Company proposes to file with the Securities
and Exchange Commission on or about October 3, 1997 for the purpose of
registering under the Securities Act of 1933, as amended, an additional
aggregate of 3,075,000 shares of its $.01 par value Common Stock (the "Shares").
Of the Shares 2,250,000 are issuable under the Company's Equity Incentive Plan
and 825,000 are issuable under the Company's Employee Stock Purchase Plan. The
Shares have become available for issuance under the Company's Equity
Incentive Plan and the Company's Employee Stock Purchase Plan (jointly
referred to herein as the "Plans") as a result of amendments to such Plans
approved by the Company's stockholders at the Company's Annual Meeting of
Stockholders held on June 6, 1997.
In connection with this opinion, we have assumed the authenticity of
all records, documents and instruments submitted to us as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all records, documents and instruments submitted
to us as copies. We have based our opinion upon our review of the following
records, documents, instruments and certificates and such additional
certificates relating to factual matters as we have deemed necessary or
appropriate for our opinion:
(a) The Articles of Incorporation of the Company certified by the
Secretary of State of the State of California as of June 25, 1997
and certified to us by an officer of the Company as being
complete and in full force and effect as of the date of this
opinion;
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REMEC, Inc.
October 3, 1997 Page 2
(b) The Bylaws of the Company certified to us by an officer of the
Company as being complete and in full force and effect as of the
date of this opinion;
(c) A Certificate of the Chief Financial Officer of the Company (i)
attaching records certified to us as constituting all records of
proceedings and actions of the Board of Directors and
shareholders of the Company relating to the Plans and the
Registration Statement, and (ii) certifying as to certain other
factual matters;
(d) The Registration Statement;
(e) The Plans; and
(f) A Certificate of ChaseMellon Shareholder Services, the Company's
transfer agent, dated October 1, 1997 as to certain factual
matters.
This opinion is limited to the federal laws of the United States of
America and the law of the State of California, and we disclaim any opinion as
to the laws of any other jurisdiction. We further disclaim any opinion as to any
statute, rule, regulation, ordinance, order or other promulgation of any other
jurisdiction or any regional or local governmental body or as to any related
judicial or administrative opinion.
Based upon the foregoing and our examination of such questions
of law as we have deemed necessary or appropriate for the purpose of this
opinion, and assuming that (i) the Registration Statement becomes and remains
effective during the entire period when the Shares are offered and sold, (ii)
appropriate certificates evidencing the Shares will be executed and delivered
upon issuance of the Shares, (iii) the full consideration stated in the Plans is
paid for each Share, and (iv) all applicable securities laws are complied with,
it is our opinion that, when issued by the Company, after payment therefor in
the manner provided in the Plans, the Shares will be legally issued, fully paid
and nonassessable.
This opinion is rendered to you in connection with the
Registration Statement and is solely for your benefit. This opinion may not be
relied upon by you for any other purpose, or relied upon by any other person,
firm, corporation or other entity without our prior written consent. We disclaim
any obligation to advise you of any change of law that occurs, or any facts of
which we become aware, after the date of this opinion.
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REMEC, Inc.
October 3, 1997 Page 3
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
\S\ HELLER EHRMAN WHITE & MCAULIFFE
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Equity Incentive Plan and Employee Stock Purchase
Plan of REMEC, Inc. of our report dated February 24, 1997, except for the first
paragraph of Note 2, as to which the date is February 28, 1997, with respect to
the consolidated financial statements of REMEC, Inc. included in its Annual
Report (Form 10-K/A) for the year ended January 31, 1997 and the related
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
San Diego, California
October 3, 1997
