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As filed with the Securities and Exchange Commission on February 19, 1998
Registration No. 333-45353
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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REMEC, INC.
(Exact name of registrant as specified in its charter)
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CALIFORNIA 3812 95-3814301
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation or organization) Classified Code Number) Identification No.)
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9404 CHESAPEAKE DRIVE, SAN DIEGO, CALIFORNIA 92123, (619) 560-1301
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
RONALD E. RAGLAND, CHAIRMAN AND CHIEF EXECUTIVE OFFICER
9404 CHESAPEAKE DRIVE, SAN DIEGO, CALIFORNIA 92123, (619) 560-1301
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
Victor A. Hebert
Paul H. Greiner
Heller Ehrman White & McAuliffe
601 South Figueroa Street
Los Angeles, California 90017-5758
(213) 689-0200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Registration Statement.
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, 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. [ ]
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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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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The Company will pay all expenses incident to the offering and sale to
the public of the shares being registered other than any commissions and
discounts of underwriters, dealers or agents and any transfer taxes. Such
expenses are set forth in the following table. All of the amounts shown are
estimates except the Securities and Exchange Commission ("SEC") registration
fee.
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SEC registration fee............................ $ 7,504
Legal fees and expenses......................... 5,000
Accounting fees and expenses.................... 1,000
Miscellaneous expenses.......................... 496
Total................................ $14,000
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ITEM 15. 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 General
Corporation Law of California. Articles Fifth and Sixth of the Registrant's
Amended and Restated Articles of Incorporation provide as follows:
"Fifth: The liability of directors of this Corporation for
monetary damages shall be eliminated to the fullest extent permissible
under California law."
"Sixth: 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 By-laws provides that the
Registrant shall indemnify its directors and executive officers to the fullest
extent not prohibited by California General Corporation Law 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 16. EXHIBITS.
5.1 Opinion of Heller Ehrman White & McAuliffe.
*23.1 Consent of Ernst & Young LLP, Independent Auditors.
*23.2 Consent of Ireland San Filippo, LLP, Independent Public Accountants.
*23.3 Consent of Bray, Beck & Koetter, Independent Public Accountants
23.4 Consent of Counsel (included in Exhibit 5.1).
*24.1 Power of Attorney.
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* Previously filed.
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ITEM 17. UNDERTAKINGS.
A. UNDERTAKING PURSUANT TO RULE 415.
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)
Securities Act of 1933 (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 SEC pursuant to Rule 424(b)
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(l)(i) and A(l)(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 Registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (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 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) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of this offering.
B. UNDERTAKING REGARDING FILINGS INCORPORATING SUBSEQUENT EXCHANGE
ACT DOCUMENTS BY REFERENCE.
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
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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.
C. UNDERTAKING IN RESPECT OF INDEMNIFICATION.
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 SEC 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.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, REMEC,
Inc. has duly caused this Amendment No. 1 to Registration Statement on Form S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in San
Diego, California on February 18, 1998.
REMEC, INC.
By: /S/ ERROL EKAIREB
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Errol Ekaireb
President and
Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Amendment No. 1 to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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SIGNATURE CAPACITY DATE
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* Chairman of the Board and Chief February 18, 1998
- ------------------------------- Executive Officer (Principal
Ronald E. Ragland Executive Officer)
/S/ ERROL EKAIREB President, Chief Operating Officer February 18, 1998
- ------------------------------- and Director
Errol Ekaireb
* Executive Vice President, President February 18, 1998
- ------------------------------- of REMEC Microwave Division
Jack A. Giles and Director
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* Senior Vice President, Chief February 18, 1998
- ------------------------------- Engineer and Director
Denny Morgan
* Executive Vice President and February 18, 1998
- ------------------------------- Director
Joseph T. Lee
* Chief Financial Officer and February 18, 1998
- ------------------------------- Secretary (Principal Financial
Michael McDonald and Accounting Officer)
* Director February 18, 1998
- -------------------------------
Andre R. Horn
* Director February 18, 1998
- -------------------------------
Gary L. Luick
* Director February 18, 1998
- -------------------------------
Jeffrey M. Nash
* Director February 18, 1998
- -------------------------------
Thomas A. Corcoran
* Director February 18, 1998
- -------------------------------
William H. Gibbs
* By: /s/ ERROL EKAIREB
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Errol Ekaireb
Attorney-in-Fact
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EXHIBIT INDEX
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Sequentially
Exhibit No. Description Numbered Pages
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5.1 Opinion of Heller Ehrman White & McAuliffe.
*23.1 Consent of Ernst & Young LLP, Independent Auditors.
*23.2 Consent of Ireland San Filippo, LLP, Independent Public Accountants.
*23.3 Consent of Bray, Beck & Koetter, Independent Public Accountants.
23.4 Consent of Counsel (included in Exhibit 5.1).
*24.1 Power of Attorney.
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* Previously filed
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EXHIBIT 5.1
February 18, 1998
REMEC, Inc.
9404 Chesapeake Drive
San Diego, California 92123
Registration Statement on Form S-3
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-3
contemplated to be filed with the Securities and Exchange Commission on January
30, 1998 (the "Registration Statement"), for the purpose of registering under
the Securities Act of 1933, as amended, 1,047,482 currently issued and
outstanding shares of the Company's Common Stock, $0.01 par value per share (the
"Shares"), that may be sold by certain shareholders (the "Selling Shareholders")
of the Company pursuant to the Registration Statement.
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:
(a) The Restated Articles of Incorporation of the Company certified
by the Secretary of State of the State of California as of
October 22, 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;
(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 Secretary of the Company: (i) certifying
that copies of all records of proceedings and actions of the
Board of Directors of the Company, including any committee
thereof, relating to the issuance of the Shares and the proposed
resale of the Shares pursuant to the Registration Statement have
been provided to us; and (ii) certifying as to certain factual
matters; and
(d) The Registration Statement.
This opinion is limited to the laws 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 other statute, rule,
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REMEC, Inc.
February 18, 1998
Page 2
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. Our opinion to the effect that all issued and
outstanding Shares are fully paid and nonassessable is based on the
certification obtained from the Company identified in item (c) above to the
effect that the consideration for such Shares recited in the Board of Directors'
resolutions for such Shares has been received.
Our opinion expressed below also assumes that: (i) the Registration
Statement becomes and remains effective during the period when the Shares are
offered and sold; and (ii) all applicable securities laws are complied
with in connection with the sale of the Shares by the Selling Shareholders.
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, it is
our opinion that the currently issued and outstanding Shares covered by the
Registration Statement to be sold by the Selling Shareholders are legally
issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement. 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.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to our firm under the
caption "Legal Matters" in the Registration Statement and any amendments
thereto.
Very truly yours,
/s/ HELLER EHRMAN WHITE & McAULIFFE
