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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 19, 1998
REGISTRATION NO. 333-45595
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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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<S> <C> <C>
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:
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<S> <C>
VICTOR A. HEBERT DOUGLAS J. REIN
PAUL H. GREINER GRAY CARY WARE & FREIDENRICH
HELLER EHRMAN WHITE & MCAULIFFE 4365 EXECUTIVE DRIVE, SUITE 1600
601 SOUTH FIGUEROA STREET SAN DIEGO, CALIFORNIA 92121-2189
LOS ANGELES, CALIFORNIA 90017-5758 (619) 677-1400
(213) 689-0200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable 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. [ ]
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
SEC Registration Fee, the NASD Filing Fee and the Nasdaq National Market
Additional Listing Fee.
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SEC Registration Fee.............................................. $ 20,678
NASD filing fee................................................... $ 7,510
Nasdaq National Market Additional Listing Fee..................... $ 17,500
Blue Sky Qualification Fees and Expenses.......................... $ 2,000
Transfer Agent and Registrar Fees................................. $ 5,000
Printing and Engraving............................................ $ 65,000
Legal fees and expenses........................................... $150,000
Accounting fees and expenses...................................... $ 35,000
Miscellaneous expenses............................................ $ 47,312
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Total................................................... $350,000
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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.
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ITEM 16. EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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*1.1 Form of Underwriting Agreement.
3.1 (1) Restated Articles of Incorporation.
3.2 (1) By-Laws, as amended.
4.1 (1) Specimen Common Stock Certificate
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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(1) Previously filed with the Securities and Exchange Commission as an exhibit
to Registrant's Registration Statement on Form S-1 (No. 333-80381) filed on
February 1, 1996 and incorporated herein by reference.
* Previously filed.
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.
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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 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 February 18, 1998
- --------------------------------------------- Chief Executive Officer
Ronald E. Ragland (Principal Executive
Officer)
/s/ ERROL EKAIREB President, Chief Operating February 18, 1998
- --------------------------------------------- Officer and Director
Errol Ekaireb
* Executive Vice President, February 18, 1998
- --------------------------------------------- President of REMEC Microwave
Jack A. Giles Division and Director
* Senior Vice President, Chief February 18, 1998
- --------------------------------------------- Engineer and Director
Denny Morgan
* Executive Vice President and February 18, 1998
- --------------------------------------------- Director
Joseph T. Lee
* Senior Vice President, Chief February 18, 1998
- --------------------------------------------- Financial Officer and
Michael McDonald Secretary (Principal
Financial and Accounting
Officer)
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SIGNATURE CAPACITY DATE
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* Director February 18, 1998
- ---------------------------------------------
Andre R. Horn
* Director February 18, 1998
- ---------------------------------------------
Gary L. Luick
* Director February 18, 1998
- ---------------------------------------------
Jeffrey M. Nash
/s/ THOMAS A. CORCORAN Director February 18, 1998
- ---------------------------------------------
Thomas A. Corcoran
Director February , 1998
- ---------------------------------------------
William H. Gibbs
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* By: /s/ ERROL EKAIREB
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Errol Ekaireb
Attorney-in-Fact
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EXHIBIT INDEX
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EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGES
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*1.1 Form of Underwriting Agreement.......................................
3.1(1) Restated Articles of Incorporation...................................
3.2(1) By-Laws, as amended..................................................
4.1(1) Specimen Common Stock Certificate....................................
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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(1) Previously filed with the Securities and Exchange Commission as an exhibit
to the Registrant's Registration Statement on Form S-1 (No. 333-80381) filed
on February 1, 1996 and incorporated herein by reference.
* 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
(Registration No. 333-45595) filed with the Securities and Exchange Commission
(the "SEC") on February 4, 1998 and Amendment No. 1 thereto contemplated to be
filed with the SEC on February 18, 1998 (collectively the "Registration
Statement"), for the purpose of registering under the Securities Act of 1933, as
amended, 1,645,000 shares (the "Company Shares") of the Company's Common Stock,
$0.01 par value per share (the "Common Stock"), to be issued by the Company and
1,000,000 currently issued and outstanding shares of Common Stock (the "Selling
Shareholder Shares" and together with the Company Shares, collectively 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 February 3, 1998,
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;
(d) The Registration Statement; and
(e) The form of Underwriting Agreement (the "Underwriting Agreement")
among the Company, the Selling Shareholders and Needham & Company, Inc.,
CIBC Oppenheimer Corp. and A.G. Edwards & Sons, Inc., as representatives of
the several underwriters.
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, 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 is effective at the time the Shares are sold; and (ii) all applicable
securities laws are complied with in connection with the sale of the Shares by
the Selling Shareholders.
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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 Selling Shareholder Shares are legally issued, fully paid and
nonassessable, and the Company Shares, when issued by the Company in accordance
with the Underwriting Agreement, will be 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
