<PAGE> 1
As filed with the Securities and Exchange Commission on May 22, 1998
Registration No. _______________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
----------------------
VERTEX COMMUNICATIONS CORPORATION
(Exact name of Registrant as specified in its charter)
TEXAS 75-1982974
(State or other jurisdiction of (I.R.S. Employer
of incorporation or organization) Identification No.)
----------------------
2600 N. LONGVIEW STREET
KILGORE, TEXAS 75662
(Address of Principal Executive Offices) (Zip Code)
----------------------
VERTEX COMMUNICATIONS CORPORATION
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full Title of the Plan)
----------------------
J. REX VARDEMAN Copy to:
President and Chief Executive Officer BILL R. WOMBLE, ESQ.
Vertex Communications Corporation Thompson & Knight, P.C.
2600 North Longview Street 1700 Pacific Avenue
Kilgore, Texas 75662 Suite 3300
(Name and Address of Agent for Service) Dallas, Texas 75201-4693
(214) 969-1700
(903) 984-0555
(Telephone Number, including area code,
of Agent for Service)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
TITLE AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.10 par value 75,000
per share Shares(2) $24.25 $1,818,750.00 $536.53
=========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
sales prices of the Common Stock of Vertex Communications Corporation,
as reported on the Nasdaq Stock Market, National Market System, on May
18, 1998, as reported in the May 19, 1998 edition of The Wall Street
Journal.
(2) Pursuant to Rule 416, shares issuable upon any stock split, stock
dividend or similar transaction with respect to the shares covered
hereby are also being registered hereunder.
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<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed or to be filed by Vertex
Communications Corporation (the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference herein:
(1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1997, which incorporates by reference
the consolidated financial statements of the Registrant and
its subsidiaries and certain supplementary data for the fiscal
year ended September 30, 1997, together with the report
thereon of Arthur Andersen LLP, independent public
accountants.
(2) The Registrant's Quarterly Reports on Form 10-Q for the
quarterly periods ended January 2, 1998, and April 3, 1998,
respectively.
(3) The Registrant's Non-Employee Directors Stock Option Plan
filed as Exhibit A to the Registrant's definitive Proxy
Statement in connection with the solicitation of proxies for
its 1998 Annual Meeting of Shareholders (File No. 0-15277).
(4) The description of the Common Stock of the Registrant
incorporated by reference in its Registration Statement on
Form 8-A heretofore filed with and declared effective by the
Commission, pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of
updating such description.
In addition, all documents filed by the Registrant subsequent to the
date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment to
this Registration Statement 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 in this Registration Statement and to be
a part hereof from the respective dates of filing of such documents.
- -----------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (the "Securities
Act"), and the Note to Part I of Form S-8.
1
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Registrant by Thompson & Knight, P.C.,
Dallas, Texas. Bill R. Womble, a shareholder of Thompson & Knight, P.C.,
beneficially owned 20,550 shares of the Registrant's Common Stock as of May 18,
1998.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Texas corporation. Article 1302-7.06 of the Texas
Miscellaneous Corporation Laws Act authorizes Texas corporations, such as the
Company, to eliminate or limit, pursuant to a provision in their articles of
incorporation, the liability of directors thereof to the corporation and its
shareholders for certain acts or omissions in the director's capacity as a
director, subject to certain limitations. Reference is made to Article Thirteen
of the Company's Restated Articles of Incorporation, as amended, which are
incorporated herein as Exhibit 4.1, that eliminates the liability of directors
of the Company for monetary damages for certain acts or omissions, subject to
certain limitations. It is the position of the Commission that indemnification
of directors and officers for liabilities arising under the Securities Act is
against public policy and is unenforceable pursuant to Section 14 of the
Securities Act.
Article 2.02-1 of the Texas Business Corporation Act provides that a
corporation may indemnify any director or officer who was, is or is threatened
to be made a named defendant or respondent in a proceeding because he is or was
a director or officer, provided that the director or officer (i) conducted
himself in good faith, (ii) reasonably believed (a) in the case of conduct in
his official capacity, that his conduct was in the corporation's best interests
or (b) in all other cases, that his conduct was at least not opposed to the
corporation's best interests and (iii) in the case of any criminal proceeding,
had no reasonable cause to believe his conduct was unlawful. Subject to certain
exceptions, a director or officer may not be indemnified if the person is found
liable to the corporation or if the person is found liable on the basis that he
improperly received a personal benefit. Under Texas law, reasonable expenses
incurred by a director or officer may be paid or reimbursed by the corporation
in advance of a final disposition of the proceeding after the corporation
receives a written affirmation by the director or officer of his good faith
belief that he has met the standard of conduct necessary for indemnification and
a written undertaking by or on behalf of the director or officer to repay the
amount if it is ultimately determined that the director or officer is not
entitled to indemnification by the corporation. Texas law requires a corporation
to indemnify an officer or director against reasonable expenses incurred in
connection with the proceeding in which he is named defendant or respondent
because he is or was a director or officer if he is wholly successful in defense
of the proceeding.
Texas law also permits a corporation to purchase and maintain insurance
or another arrangement on behalf of any person who is or was a director or
officer against any liability asserted against him and incurred by him in such a
capacity or arising out of his status as such a person, whether or not the
corporation would have the power to indemnify him against that liability under
Article 2.02-1.
The Company's Restated Articles of Incorporation, as amended, and
Bylaws, as amended, provide for the indemnification of its officers and
directors, and the advancement to them of expenses in connection with
proceedings and claims, to the fullest extent permitted by the Texas Business
Corporation Act. The Company has also entered into indemnification agreements
with each of its directors and certain of its officers that contractually
provide for indemnification and expense advancement and include related
provisions meant to facilitate the indemnitees' receipt of such benefits.
2
<PAGE> 4
The above discussions of Article 1302-7.06 of the Texas Miscellaneous
Corporation Laws Act, Article 2.02-1 of the Texas Business Corporation Act and
of the Company's Restated Articles of Incorporation and Bylaws are not intended
to be exhaustive and each is respectively qualified in its entity by reference
to the applicable statute and the Company's Restated Articles of Incorporation
and Bylaws, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as Exhibits herewith pursuant to Item
601 of Regulation S-K or are incorporated in this Registration Statement by
reference to previous filings with the Commission as noted.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<S> <C>
4.1(1)..... Restated Articles of Incorporation, as amended, of the Registrant
4.2(2)..... Bylaws, as amended, of the Registrant
4.3(3)..... Specimen Common Stock Certificate
5.1(5)..... Opinion of Thompson & Knight, P.C. regarding legality of shares
10.1(4)..... Vertex Communications Corporation Non-Employee Directors Stock Option Plan
23.1(5)..... Consent of independent public accountants
23.2(5)..... Consent of counsel (included in the opinion of Thompson & Knight, P.C. filed herewith as Exhibit 5.1)
24.1(5)..... Power of Attorney (included on the signature page of this Registration Statement)
</TABLE>
- ----------
(1) Filed as Exhibit 4.1 to the Registrant's Registration Statement on Form
S-3 dated May 22, 1998, which Exhibit is hereby incorporated herein by
reference.
(2) Filed as Exhibit 4.2 to the Registrant's Registration Statement on Form
S-3 dated May 22, 1998, which Exhibit is hereby incorporated herein by
reference.
(3) Filed as Exhibit 4.1 to the Registrant's Registration Statement on Form
S-2 (File No. 33-57106), which Exhibit is hereby incorporated herein by
reference.
(4) Filed as Exhibit A to the Registrant's definitive Proxy Statement in
connection with the solicitation of proxies for its 1998 Annual Meeting of
Shareholders (Commission File No. 0-15277), which Exhibit is hereby
incorporated herein by reference.
(5) Filed herewith.
3
<PAGE> 5
ITEM 9. UNDERTAKINGS.
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; and (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
(1)(i) and (1)(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 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 that remain unsold at the termination of
the offering; and
(4) 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 this 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.
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 provisions described in Item 6 of this Registration
Statement, or otherwise, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore, unenforceable. If 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> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Kilgore, State of Texas, on May 22, 1998.
VERTEX COMMUNICATIONS CORPORATION
(Registrant)
By: /s/ J. Rex Vardeman
-------------------------------------
J. Rex Vardeman
Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
We, the below signed officers and directors of Vertex Communications
Corporation ("Registrant"), do hereby constitute and appoint J. Rex Vardeman,
with full power of substitution, our true and lawful attorney and agent, to do
any and all acts and things in our names in the capacities indicated which J.
Rex Vardeman may deem necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in connection with this
Registration Statement, including specifically, but not limited to, the power
and authority to sign for us, or any of us, in our names in the capacities
indicated, and any and all amendments (including post-effective amendments) to
this Registration Statement; and we do hereby ratify and confirm all that J. Rex
Vardeman shall 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 on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J. Rex Vardeman Chairman of the Board, President, Chief May 22, 1998
- -------------------------------------- Executive Officer (Principal Executive
J. Rex Vardeman Officer) and Director
/s/ A. Don Branum Senior Vice President and Director May 22, 1998
- --------------------------------------
A. Don Branum
/s/ James D. Carter Vice President and Chief Financial Officer May 22, 1998
- -------------------------------------- (Principal Financial and Accounting
James D. Carter Officer), Treasurer and Director
/s/ Bill R. Womble Director May 22, 1998
- --------------------------------------
Bill R. Womble
/s/ Donald E. Heitzman, Sr. Director May 22, 1998
- --------------------------------------
Donald E. Heitzman, Sr.
/s/ John G. Farmer Director May 22, 1998
- --------------------------------------
John G. Farmer
/s/ Rein Luik Director May 22, 1998
- --------------------------------------
Rein Luik
</TABLE>
5
<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
<S> <C>
4.1(1)..... Restated Articles of Incorporation, as amended, of the Registrant
4.2(2)..... Bylaws, as amended, of the Registrant
4.3(3)..... Specimen Common Stock Certificate
5.1(5)..... Opinion of Thompson & Knight, P.C. regarding legality of shares
10.1(4)..... Vertex Communications Corporation Non-Employee Directors Stock Option Plan
23.1(5)..... Consent of independent public accountants
23.2(5)..... Consent of counsel (included in the opinion of Thompson & Knight, P.C. filed herewith as Exhibit 5.1)
24.1(5)..... Power of Attorney (included on the signature page of this Registration Statement)
</TABLE>
- ----------
(1) Filed as Exhibit 4.1 to the Registrant's Registration Statement on Form
S-3 dated May 22, 1998, which Exhibit is hereby incorporated herein by
reference.
(2) Filed as Exhibit 4.2 to the Registrant's Registration Statement on Form
S-3 dated May 22, 1998, which Exhibit is hereby incorporated herein by
reference.
(3) Filed as Exhibit 4.1 to the Registrant's Registration Statement on Form
S-2 (File No. 33-57106), which Exhibit is hereby incorporated herein by
reference.
(4) Filed as Exhibit A to the Registrant's definitive Proxy Statement in
connection with the solicitation of proxies for its 1998 Annual Meeting of
Shareholders (Commission File No. 0-15277), which Exhibit is hereby
incorporated herein by reference.
(5) Filed herewith.
<PAGE> 1
EXHIBIT 5.1
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VERTEX COMMUNICATIONS CORPORATION
EXHIBIT 5.1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<PAGE> 2
EXHIBIT 5.1
THOMPSON & KNIGHT
A PROFESSIONAL CORPORATION
ATTORNEYS AND COUNSELORS
1700 PACIFIC AVENUE, SUITE 3300
DALLAS, TEXAS 75201-4693
(214) 969-1700
FAX (214) 969-1751
May 22, 1998
Vertex Communications Corporation
2600 North Longview Street
Kilgore, Texas 75662
Re: VERTEX COMMUNICATIONS CORPORATION
NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN;
REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have acted as counsel for Vertex Communication Corporation, a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of an aggregate of 75,000 shares
(the "Shares") of the common stock, $.10 par value per share (the "Common
Stock"), of the Company under the Company's Non-Employee Directors Stock Option
Plan (the "Plan") for eligible non-employee directors of the Company. A
registration statement on Form S-8 (the "Registration Statement") covering the
issuance and sale of the Shares from time to time upon exercise of stock options
pursuant to the Plan has this date been filed under the Act with the Securities
and Exchange Commission (the "Commission").
In reaching the conclusions expressed in this opinion, we have examined
executed copies of the Registration Statement and all exhibits thereto. We have
also examined and relied upon the original, or copies certified to our
satisfaction, of (i) the Restated Articles of Incorporation, as amended, and the
Bylaws, as amended, of the Company, (ii) minutes and records of the corporate
proceedings of the Company with respect to the issuance of the Shares and
related matters, (iii) the Plan, and (iv) such other agreements and instruments
relating to the Company as we have deemed necessary or appropriate for purposes
of the opinions hereinafter expressed. In rendering such opinions, we have made
such further investigation and inquiries relevant to the transactions
contemplated by the Registration Statement as we have deemed necessary to the
opinions expressed herein and have relied, to the extent we deemed reasonable,
on certificates and certain other information provided to us by officers of the
Company and public officials as to matters of fact of which the maker of each
such certificate or the person providing such other information had knowledge.
Furthermore, in rendering such opinions, we have assumed that the signatures on
all documents examined by us are genuine, that all documents and corporate
record books submitted to us as originals are accurate and complete, and that
all documents submitted to us as copies are true, correct and complete copies of
the originals thereof.
In issuing the opinions hereinafter expressed, we do not purport to be
experts in the laws of any jurisdiction other than the State of Texas and the
United States of America.
<PAGE> 3
Vertex Communications Corporation
May 22, 1998
Page 2
Based solely upon the foregoing, and limited in all respects as aforesaid,
WE ARE OF THE OPINION that:
(a) The Company has been duly incorporated and is validly existing
under the laws of the State of Texas.
(b) The Shares of Common Stock of the Company registered pursuant
to the Registration Statement have been duly and validly
authorized by the Company, and when sold, issued and delivered
in the manner and for the consideration described in the Plan,
will be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In granting this consent, we do not thereby admit that
we come within the category of persons whose consent is required pursuant to
Section 7 of the Act or the rules or regulations of the Commission thereunder.
Respectfully submitted,
THOMPSON & KNIGHT, P.C.
A Professional Corporation
By: /s/ Bill R. Womble
---------------------------------
BILL R. WOMBLE, Attorney
BW/ogk
<PAGE> 1
EXHIBIT 23.1
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VERTEX COMMUNICATIONS CORPORATION
EXHIBIT 23.1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<PAGE> 2
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 registration statement of our reports dated
October 24, 1997, included in Vertex Communications Corporation's Form 10-K for
the year ended September 30, 1997, and to all references to our Firm included
in the registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
May 22, 1998
