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As filed with the Securities and Exchange Commission on March 5, 1999 Registration No. 333-53391
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VERTEX COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
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TEXAS 75-1982974
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
J. REX VARDEMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2600 NORTH LONGVIEW STREET VERTEX COMMUNICATIONS CORPORATION
KILGORE, TEXAS 75662 2600 NORTH LONGVIEW STREET
(903) 984-0555 KILGORE, TEXAS 75662
(Address, including zip code, and (903) 984-0555
telephone number, including area code, (Name, address, including zip code, and telephone number,
of registrant's principal executive offices) including area code, of agent for service)
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Copy to:
BILL R. WOMBLE, ESQ.
THOMPSON & KNIGHT, P.C.
1700 PACIFIC AVENUE, SUITE 3300
DALLAS, TEXAS 75201
(214) 969-1700 (PHONE)
(214) 969-1751 (FAX)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the effective date of this Post-Effective Amendment No. 1 to
this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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, other than securities offered only in connection with
dividend or interest reinvestment plans, 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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THIS POST-EFFECTIVE AMENDMENT NO. 1 TO THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF
1933 ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY
DETERMINE.
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SUBJECT TO COMPLETION, DATED MARCH 5, 1999
PROSPECTUS
[LOGO]
198,647 SHARES
VERTEX COMMUNICATIONS CORPORATION
COMMON STOCK
2600 North Longview Street
Kilgore, Texas 75662
(903) 984-0555
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Certain shareholders of Vertex Communications Corporation are offering
and selling 198,647 shares of Vertex common stock under this Prospectus. Vertex
will not receive any of the proceeds from the sale of these shares.
The selling shareholders received their shares of Vertex common stock
in connection with an acquisition made by Vertex in June, 1997 of TIW Systems,
Inc. The selling shareholders expect to sell all of their shares.
The selling shareholders may offer their Vertex common stock through
public or private transactions, on or off The Nasdaq Stock Market' National
Market (the "Nasdaq"), at prevailing market prices, or at privately negotiated
prices. The selling shareholders can utilize broker-dealers to facilitate these
transactions.
Vertex common stock is traded on the Nasdaq under the symbol "VTEX".
On March 3, 1999, the last reported sale price of Vertex common stock on the
Nasdaq was $16.00 per share.
Investing in Vertex common stock involves certain risks. See "Risk
Factors" beginning on page 4.
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The Vertex shares of common stock offered or sold under this
Prospectus have not been approved by the Securities and Exchange Commission or
any state securities commission, nor have these organizations determined that
this Prospectus is accurate or complete. Any representation to the contrary is
a criminal offense.
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The information in this Prospectus is not complete and may be changed.
We may not sell these securities until the post-effective amendment to the
registration statement filed with the Securities and Exchange Commission is
effective. This Prospectus is not an offer to sell these securities and we are
not soliciting an offer to buy these securities in any state where the offer or
sale is not permitted.
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THE DATE OF THIS PROSPECTUS IS MARCH , 1999.
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TABLE OF CONTENTS
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PAGE
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About This Prospectus................................................................................................... 3
Where You Can Find More Information..................................................................................... 3
Vertex.................................................................................................................. 4
Risk Factors............................................................................................................ 4
Selling Shareholders.................................................................................................... 7
Description of Capital Stock............................................................................................ 9
Plan of Distribution.................................................................................................... 10
Legal Matters........................................................................................................... 11
Experts................................................................................................................. 11
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ABOUT THIS PROSPECTUS
This Prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (the "SEC"). This Prospectus provides
you with a general description of the securities we are offering. You should
read this Prospectus together with additional information described under the
heading WHERE YOU CAN FIND MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the SEC's Regional Offices at
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and at 7 World Trade Center, Suite 1300, New York, New York 10048.
Our SEC filings are also available to the public over the Internet at the SEC's
web site at http://www.sec.gov. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms.
The SEC allows us to "incorporate by reference" the information we
file with them, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this Prospectus, and information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until all of the shares of Vertex common stock described
in this Prospectus are sold or this Prospectus expires.
o Annual Report on Form 10-K for the year ended September 30,
1998;
o Quarterly Report on Form 10-Q for the quarter ended January 1,
1999; and
o The description of Vertex's common stock contained in the
Registration Statement on Form 8-A, including any amendments or
reports filed for the purpose of updating such description.
You may request a copy of these filings at no cost by writing or
telephoning us at the following address:
Vertex Communications Corporation
Attention: James D. Carter, Vice President and Chief Financial Officer
2600 North Longview Street
Kilgore, Texas 75662
(903) 984-0555
You should rely only on the information incorporated by reference or
provided in this Prospectus. We have not authorized anyone else to provide you
with different information. We are not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information in this Prospectus is accurate as of any date other than the date
on the front of this document.
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VERTEX
Vertex Communications Corporation designs, develops, manufactures,
markets and supports an extensive line of precision products for satellite and
deep space communications applications. These products include sophisticated
earth station antennas ranging in size from 1.2 to 34 meters in diameter (which
operate in various relevant frequency bands, including L-, C-, X, Ku- and
Ka-bands, and are available for commercial and military applications),
integrated communications network systems, and optical and radio telescopes. We
also manufacture state-of-the-art control systems designed to manage and
monitor the operation, guidance, tracking and telemetry capabilities of
communications network systems as well as individual antennas, related
electronic components used to amplify radio frequency signals, and precision
waveguide components for application as component parts of communications
systems. We also provide custom engineering, turnkey field installation, site
testing and after-sale and maintenance services, and spare and replacement
parts in support of our products.
Our strategy is to provide a wide variety of precision satellite
communications products compliant with state-of-the-art technology to satisfy
an expanding range of customer and industry requirements. To accomplish our
objectives, we engage in ongoing efforts to introduce, in a timely manner,
products that we have designed to meet applicable domestic and international
specifications. We believe that we offer a more diverse line of products than
any of our principal competitors. Due to the exacting design and engineering
requirements necessary to produce satellite communications systems, subsystems
and related products, quality control and precision engineering are central to
the manufacturing process. We believe that we have developed a reputation as a
leader in quality control procedures which has enhanced our position in the
marketplace.
While we market our products to systems integrators and end users who
combine our products with other communications equipment to form complete
communications systems, we also market integrated communications network
systems utilizing our own products. In the United States, we market our
products through a direct sales force; while in international markets, we
utilize a direct sales force, supplemented by independent foreign sales
representatives. Our customers include the television broadcast industry,
international telecommunications companies, communications common carriers,
private communications network, and government agencies, including certain
agencies of the U.S. Government and various foreign governments.
We were organized as a Texas corporation in 1984. Our wholly-owned
subsidiaries include: Vertex Satcom Systems, Inc. (formerly known as TIW
Systems, Inc.), a Nevada corporation headquartered in Santa Clara, California;
Vertex Antenna Systems, LLC (formerly a division of TIW Systems, Inc.), a
Nevada limited liability company with its principal office in Santa Clara,
California; Vertex Microwave Products, Inc., a Nevada corporation headquartered
in Torrance, California; Vertex Electronics Products, Inc., a Pennsylvania
corporation that is located in State College, Pennsylvania; Vertex
Antennentechnik GmbH, a corporation organized pursuant to the laws of the
Federal Republic of Germany, with its headquarters in Duisburg, Germany; Vertex
Foreign Sales Corporation, organized pursuant to the laws of The Virgin
Islands, with its office in St. Thomas, The Virgin Islands; and Vertex
International, Ltd., formed under the laws of England.
RISK FACTORS
In addition to the other information contained or incorporated by
reference in this Prospectus, you should consider carefully the risks set forth
below.
DEPENDENCE ON MAJOR CUSTOMERS. The continued success of our business
is dependent on continued sales to our major customers. While no single
customer accounted for as much as 10% of our total sales in fiscal 1998 or
1997, GTE Corporation accounted for 12% of our total sales in fiscal 1996. For
the three months ended January 1, 1999, no single customer accounted for as
much as 10% of our total sales for such period. We believe that our
relationships with our customers are excellent and that we will continue to be
a major supplier of satellite communications earth station antenna products to
our major customers. Although our relationships with many of
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our major customers have existed for a number of years, we cannot assure you
that such relationships will continue. The loss of any one of our major
customers could have a material adverse effect on us and our business.
EXPORT SALES. Export sales to international markets were 59%, 56% and
59% of total sales in fiscal 1998, 1997 and 1996, respectively. For the three
months ended January 1, 1999, export sales to international markets represented
approximately 54% of our total sales. Current economic events around the globe
are causing some customers to delay orders and, in some cases, cancel projects
that otherwise could be sources for our sales. We believe this slowdown is
attributable to current financial instability and depressed economic conditions
in several foreign countries, particularly certain Asian and European
countries. While we expect over the long-term that our international business
increasingly will account for a more significant portion of our net sales, we
expect our revenues and corresponding profits in fiscal year 1999 to experience
a decline in growth rates below the levels of recent years until these
international markets stabilize. We expect the current slowdown to be
short-term in duration and that international product demand should return to
more normal levels by fiscal year 2000. We cannot assure you that we will be
successful in either increasing our export sales to international markets or
maintaining such sales at the levels attained in recent years.
REGULATORY STANDARDS. Our products are designed to meet both domestic
and foreign standards. Foreign regulatory bodies often establish standards
different from those of the United States. Future foreign regulatory
requirement changes could require us to design or redesign specific products to
meet foreign standards. While to date we have experienced no material
difficulty in this regard and currently anticipate none in the foreseeable
future, the cost and effort we would incur to design or redesign products in
compliance with such foreign standards could adversely affect our operating
results.
INTERNATIONAL BUSINESS RISKS. Although we conduct substantially all of
our international business in United States dollars, changes in demand resulting
from fluctuation in currency exchange rates, as well as by risks such as tariff
regulations and difficulties in obtaining export licenses may affect such
international business. While none of these factors have materially affected our
international business to date, we cannot assure you that such factors will not
have a material adverse effect upon our business in the future.
TECHNOLOGICAL CHANGE AND PRODUCT DEVELOPMENT. The satellite
communications earth station antenna industry is characterized by rapid or
unexpected technological change, product introductions and evolving industry
standards resulting from ongoing research and development efforts. Although we
believe that we have certain technological and other advantages over our
competitors, maintaining such advantages will require our continued investment
in research and development and sales and marketing. Our ability to compete
successfully will depend, to a significant extent, on our ability to continue
to enhance our existing products and to develop and introduce new products
which maintain technological leadership, satisfy an expanded range of customer
needs and maintain market acceptance. We cannot assure you that subsequent
developments in the industry or the development of some alternative technology
will not adversely impact the demand for some of our products.
COMPETITION. We experience substantial competition from a number of
established companies which provide a broad range of products to the satellite
communications earth station antenna market. Certain of these companies have
substantially greater financial and personnel resources than those available to
us. Our products may not be proprietary or patentable; consequently, our
competition may duplicate and exploit them. We cannot assure you that we will
be able to continue to effectively compete with existing or future competitors
in the satellite communications earth station antenna industry.
YEAR 2000 COMPLIANCE. We are working to resolve the potential impact
of the "Year 2000 Issue" on the ability of our information technology systems
and embedded technology to accurately process information that may be
date-sensitive. Any of our software programs or embedded technology that
recognizes a date using "00" as
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the year 1900 (rather than the year 2000) could result in systems failures or
miscalculations causing disruptions in our operations.
We have reviewed the effect of the Year 2000 Issue relating to our
information systems and have begun updating and replacing, as necessary,
in-house systems and equipment, beginning with the most significant through the
least important. In addition, we have begun communications with our significant
suppliers and customers to determine if they have appropriate plans to remedy
the Year 2000 Issue when their systems interface with our systems. We cannot,
however, determine what effect, if any, the Year 2000 Issue affecting our
vendors, customers, other businesses and the numerous local, state, federal and
other U.S. and foreign governmental entities with which we conduct business or
by which we are regulated, governed or taxed will have on our business or
financial position. We cannot assure you that the computer systems and software
of such entities will be Year 2000 compliant or that their noncompliance will
not have a material adverse effect on our business, financial position and
results of operations. Failure of these outside parties to become Year 2000
compliant could result in an interruption of our business.
We have begun to develop a Year 2000 contingency plan and expect to
complete and implement it by the end of March, 1999. Until this effort is
completed, however, we will be unable to completely assess our Year 2000 risks.
If we encounter unforseen problems that relate to the Year 2000 Issue, we will
evaluate possible solutions and implement the most efficient.
Our Year 2000 evaluation and modifications and the date on which we
plan to complete these efforts are based on reasonable estimates, which were
derived utilizing numerous assumptions of future events and analyses and
recommendations of informed employees and third parties. There can be no
assurance that our assessment of the risks and potential problems are accurate,
or that our actions and planned actions will timely resolve the problems
inherent with Year 2000 compliance. Actual results could differ materially from
our projections. Specific factors that might cause a material change include,
but are not limited to, the availability and cost of personnel trained in this
area, our ability to timely identify and correct all relevant computer programs
and microprocessors, and similar uncertainties. We cannot assure you that the
Year 2000 Issue will not materially affect our operations.
ANTI-TAKEOVER PROVISIONS. Texas law includes a number of provisions
that may have the effect of delaying or deterring a change in the control of
our management and encouraging persons considering unsolicited tender offers or
other unilateral takeover proposals to negotiate with our Board of Directors
rather than pursue non-negotiated takeover attempts. These provisions may make
it more difficult for our shareholders to benefit from certain transactions
which are opposed by the incumbent Board of Directors. See "Description of
Capital Stock Business Combination Law".
DEPENDENCE ON KEY PERSONNEL. We are dependent upon the continued
services and management experience of our senior executive officers. Our
ability to retain such officers is important to our continued success and
growth. The loss of key personnel could have a material adverse effect on us.
Except for limited coverage of our President and Chief Executive Officer, we do
not maintain key person insurance on our executive officers. Our continued
growth depends on our ability to attract and retain skilled employees and on
the ability of our officers and key employees to successfully manage growth.
FORWARD-LOOKING STATEMENTS. The statements contained in or
incorporated by reference into this Prospectus, including, but not limited to,
those regarding our financial position, business strategy, year 2000 compliance
and other plans and objectives for future operations and any other statements
which are not historical facts are forward-looking statements. When used in
this document, the words "anticipate," "estimate," "may," "plans," "project,"
and similar expressions are intended to be among the statements that identify
forward-looking statements. Such statements involve risks and uncertainties,
including, but not limited to, the following:
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o General economic conditions, including the impact of changing
economic conditions (including, but not limited to, the continued weak
economic conditions in certain international markets);
o Fluctuation of foreign currency exchange rates and changes
in capital spending plans of certain of our international customers;
o Uncertainties inherent in international operations;
o Uncertainties relating to our customers' plans and commitments;
o Rapid or unexpected technological changes;
o Product demand and industry capacity;
o Product development;
o The highly competitive environment in which we operate;
o Market acceptance of our new products;
o Manufacturing efficiencies;
o Availability of certain raw materials;
o Domestic and foreign government regulatory policies and
spending;
o Rising costs and availability of certain components;
o Our reliance and our suppliers' reliance on software programs
that may not be year 2000 compliant and year 2000 problems that may
exist in products currently or historically sold by us to our
customers; and
o Other factors detailed in "Risk Factors" and elsewhere in this
Prospectus and in our other filings with the Securities and Exchange
Commission.
Should one or more of these risks or uncertainties materialize, or
should underlying assumptions prove incorrect, actual results may vary
materially from those indicated.
SELLING SHAREHOLDERS
The selling shareholders acquired the Vertex common stock in a
transaction exempt from the registration requirements of the Securities Act
provided by Section 4(2) thereof pursuant to an Agreement and Plan of
Reorganization, dated May 9, 1997, between and among Vertex, Vertex Acquisition
Corporation, a wholly-owned subsidiary of Vertex, and Vertex Satcom Systems,
Inc. (formerly known as TIW Systems, Inc.). The shares of Vertex common stock
are being registered to permit secondary trading of the shares. See "Plan of
Distribution."
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The following table sets forth the name of each selling shareholder,
the aggregate number of shares owned by each selling shareholder prior to this
offering, the percentage of Vertex's outstanding common stock owned by such
selling shareholder prior to this offering, the aggregate number of shares to
be offered by each selling shareholder, the aggregate number of shares to be
owned by each selling shareholder after the sale of all shares in this offering
and the percentage of Vertex's outstanding common stock that will be owned by
such selling shareholder thereafter, in each case assuming the offering of and
sale of all the Vertex common stock in this offering.
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SHARES BENEFICIALLY OWNED SHARES BENEFICIALLY OWNED
PRIOR TO THE OFFERING(1) AFTER THE OFFERING
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NUMBER OF NUMBER OF SHARES NUMBER OF
SELLING SHAREHOLDER SHARES PERCENT(2) BEING OFFERED SHARES PERCENT(2)
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Louis E. and Elizabeth A.
Becker(3).............. 6,308 * 6,308 0 0
Jean-Pierre Bourgon ....... 1,900 * 1,900 0 0
Joseph Hermann Duller ..... 1,044 * 1,044 0 0
Raymond Geisick ........... 1,675 * 1,675 0 0
John R. and Ann M.
Griffiths ............. 2,578 * 2,578 0 0
Paul J. Ironmonger(4) ..... 23,120 * 23,120 0 0
Patricia A. Krehnke ....... 558 * 558 0 0
Edward F. Kurz(5) ......... 2,792 * 2,792 0 0
Rein Luik(6) .............. 69,630 1.4 37,812 31,818 *
Fred A. McGiven ........... 1,396 * 1,396 0 0
William F. Nickerson ...... 1,253 * 1,253 0 0
TIW Stock Bonus Plan(7) ... 104,092 2.0 104,092 0 0
Robert L. and Heather L.
Wallace ............... 5,136 * 5,136 0 0
Robert N. Wellins ......... 1,253 * 1,253 0 0
John W. Whetstone ......... 5,565 * 5,565 0 0
Gary A. Young ............. 1,237 * 1,237 0 0
Yu-Chien Yuan ............. 928 * 928 0 0
Total ..... 230,465 4.5% 198,647 31,818 *%
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* Represents beneficial ownership of less than 1% of the outstanding
shares of Vertex common stock.
(1) Based on 5,096,674 shares of Vertex common stock issued and
outstanding as of March 1, 1999.
(2) The table includes shares of Vertex common stock that may be
acquired through the exercise of options within 60 days. The
percentage of the common stock owned by each person has been
computed assuming the exercise of all options deemed to be
beneficially owned by that person, and assuming that no options held
by any other person have been exercised.
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(3) Mr. Becker is a Vice President of Vertex and is President of Vertex
Antenna Systems, LLC, a wholly-owned subsidiary of Vertex.
(4) Includes 4,451 shares held by Whitcust & Co. as custodian for the
benefit of the Paul J. Ironmonger IRA.
(5) Mr. Kurz is Vice President and Chief Financial Officer of Vertex
Satcom Systems, Inc. and a co-trustee of the TIW Stock Bonus Plan.
(6) Mr. Luik is President of Vertex Electronics Group, a Vice President
and director of Vertex and a co-trustee of the TIW Stock Bonus Plan.
(7) Of the 104,092 held by the TIW Stock Bonus Plan, 20,742 shares are
held on behalf of the selling shareholders. Of these 20,742 shares,
20,543 shares are vested in the accounts of the selling shareholders
under the TIW Stock Bonus Plan and 199 shares are allocated to the
selling shareholders, subject to the vesting provisions of such
plan.
DESCRIPTION OF CAPITAL STOCK
GENERAL. The authorized capital stock of Vertex consists of 20,000,000
shares of common stock, $.10 par value per share. As of March 1, 1999,
5,096,674 shares of Vertex common stock were outstanding.
COMMON STOCK. All outstanding shares of Vertex common stock are fully
paid and nonassessable. All holders of Vertex common stock have full voting
rights and are entitled to one vote for each share held of record on all
matters submitted to a vote of the shareholders. Votes may not be cumulated in
the election of Directors. Shareholders have no preemptive, subscription or
conversion rights. The common stock is neither redeemable nor convertible, and
there are no sinking fund provisions. Holders of common stock are entitled to
dividends when and as declared by the Board of Directors from funds legally
available therefor and are entitled, in the event of liquidation, to share
ratably in all assets remaining after payment of all of our obligations. With
respect to any action required by our shareholders, the affirmative vote of the
holders of a majority of the issued and outstanding shares of vertex common
stock entitled to vote is sufficient to authorize, affirm, ratify or consent to
such action.
ChaseMellon Shareholder Services, LLC is the registrar and transfer agent
for Vertex common stock.
SPECIAL MEETINGS. Special meetings of our shareholders may be called by
the Chairman of the Board or the President, and shall be called by the
President or Secretary at the request of a majority of the Board of Directors
or by shareholders holding not less than 10% of the outstanding voting stock of
Vertex.
BUSINESS COMBINATION LAW. We are subject to Part Thirteen (the "Business
Combination Law") of the Texas Business Corporation Act, which took effect
September 1, 1997. In general, the Business Combination Law prevents an
"affiliated shareholder" (defined generally as a person that is or was within
the preceding three-year period the beneficial owner of 20% or more of a
corporation's outstanding voting shares) or its affiliates or associates from
entering into or engaging in a "business combination" (defined generally to
include (i) mergers or share exchanges, (ii) dispositions of assets having an
aggregate value equal to 10% or more of the market value of the assets or of
the outstanding common stock or representing 10% or more of the earning power
or net income of the corporation, (iii) certain issuances or transactions by
the corporation that would increase the affiliated shareholder's number of
shares of the corporation, (iv) certain liquidations or dissolutions, and (v)
the receipt of tax, guarantee, loan or other financial benefits by an
affiliated shareholder other than proportionately as a shareholder of the
corporation) with an "issuing public corporation" (which includes Vertex)
during the three-year period immediately following the affiliated shareholder's
acquisition of shares unless (a) before the date such person became an
affiliated shareholder, the board of directors of the issuing public
corporation approves the business combination or the acquisition of shares made
by the affiliated shareholder on such date or (b) not less than six months
after the date such person became an affiliated shareholder, the business
combination is approved
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by the affirmative vote of holders of at least two-thirds of the issuing public
corporation's outstanding voting shares not beneficially owned by the
affiliated shareholder or its affiliates or associates. The Business
Combination Law does not apply to a business combination with an affiliated
shareholder that was the beneficial owner of 20% or more of the outstanding
voting shares of the issuing public corporation on December 31, 1996, and
continuously until the announcement date of the business combination. In
discharging the duties of a director under the Business Combination Act or
otherwise, a director, in considering our best interests, may consider our as
well as our shareholders' long-term as well as the short-term interests,
including the possibility that those interests may be best served by our
continued independence.
LIMITATION OF DIRECTOR LIABILITY AND INDEMNIFICATION ARRANGEMENTS. Our
Restated Articles of Incorporation, as amended, contain a provision that limits
the liability of our directors as permitted by the Texas Miscellaneous
Corporation Laws Act. The provision eliminates the personal liability of
directors to Vertex and our shareholders for monetary damages for breach of
directors' fiduciary duty of care. The provision does not change the liability
of a director for breach of his duty of loyalty to us or to shareholders, acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, an act or omission for which the liability of a
director is expressly provided for by an applicable statute, an act related to
an unlawful stock repurchase or payment of a dividend, or in respect of any
transaction from which a director received an improper personal benefit.
Pursuant to the Restated Articles of Incorporation, the liability of directors
will be further limited or eliminated without action by shareholders if Texas
law is amended to further limit or eliminate the personal liability of
directors.
Our Bylaws, as amended, provide for the indemnification of our 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. We have also entered into indemnification agreements with each
of our directors and certain of our officers that contractually provided for
indemnification and expense advancement and include related provisions meant to
facilitate the indemnitees' receipt of such benefits. In addition, we may
purchase directors' and officers' liability insurance policies for our
directors and officers in the future. Such indemnification may be made even
though directors and officers would not otherwise be entitled to
indemnification under other provisions of the Bylaws or such agreements. It is
the position of the SEC 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.
PLAN OF DISTRIBUTION
The Vertex common stock covered by this Prospectus may be sold from time
to time by the selling shareholders. All sales may be made by the selling
shareholders on the Nasdaq, in privately negotiated transactions or otherwise
at prices and under terms related to the then current market price, or in
negotiated transactions. The Vertex common stock may be sold by any one or more
of the following methods:
O A block trade in which the broker or dealer so engaged will attempt
to sell the Vertex common stock as agent, but may position and
resell a portion of a block as principal to facilitate the
transaction;
O Purchases by a broker or dealer as principal, and resale by such
broker or dealer, for its account pursuant to this Prospectus;
O Ordinary brokerage transactions and transactions in which the
broker solicits purchasers; and
O Privately negotiated transactions.
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The selling shareholders may effect such transactions by selling the
Vertex common stock through or to brokers or dealers, and such brokers or
dealers will receive compensation in the form of discounts or commissions from
the selling shareholders, and may receive commissions from the purchasers of
the Vertex common stock for whom they may act as agent (which discounts or
commissions from the selling shareholders or such purchasers might exceed those
customary in the types of transactions involved).
Any of the Vertex common stock covered by this Prospectus which qualify
for sale pursuant to Rule 144 under the Securities Act may be sold under that
rule rather than pursuant to this Prospectus.
We cannot assure you that the selling shareholders will sell any or all
of the Vertex common stock offered by them hereunder.
We will pay all fees and expenses incident to the preparation and filing
of the Registration Statement, as amended, and this Prospectus, including legal
and accounting fees and expenses other than any underwriting discounts, any
selling commissions payable in respect of sales of the Vertex common stock or
any expenses incurred by the selling shareholders to retain any counsel,
accountant or other advisor, all of which will be paid by the selling
shareholders. We will receive no part of the proceeds from sales of the Vertex
common stock covered by this Prospectus. We intend to keep the Registration
Statement effective until December , 1999.
The selling shareholders and any broker-dealer acting in connection with
the sale of the Vertex common stock offered hereby may be deemed to be
"underwriters" within the meaning of the Securities Act, in which event any
discounts, concessions or commissions received by them, which are not expected
to exceed those customary in the types of transactions involved, or any profit
on resales of the Vertex common stock by them, may be deemed to be underwriting
commissions or discounts under the Securities Act.
LEGAL MATTERS
The legality of the Vertex common stock offered hereby will be passed
upon for us by Thompson & Knight, P.C., Dallas, Texas. Bill R. Womble, a
shareholder of Thompson & Knight, P.C., holds 15,500 shares of Vertex common
stock and options covering a total of 10,000 shares of Vertex common stock that
are exercisable within 60 days of the date of this Prospectus.
EXPERTS
The financial statements and schedules incorporated by reference in this
Prospectus and elsewhere in the Registration Statement, as amended, have been
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their reports with respect thereto, and are included herein in reliance upon
the authority of said firm as experts in accounting and auditing.
-11-
<PAGE> 13
==============================================================================
You should rely only on the information contained in this document or
that to which we have referred you. We have not authorized anyone to provide
you with information that is different. This Prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted. You should not assume that the
information in this Prospectus is accurate as of any date other than the date
on the front cover.
198,647 SHARES
[LOGO]
COMMON STOCK
-------------------
P R O S P E C T U S
-------------------
VERTEX COMMUNICATIONS
CORPORATION
MARCH , 1999
==============================================================================
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Except for the SEC registration fee, all expenses are estimated. All such
expenses will be paid by the Registrant.
<TABLE>
<S> <C>
SEC registration fee........................................................................................ $ 3,394
Accounting fees and expenses................................................................................ 6,000
Legal fees and expenses..................................................................................... 34,000
Miscellaneous............................................................................................... 606
Printing Fees and Expenses.................................................................................. 8,500
-------
Total................................................................................................. $52,500
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Vertex is a Texas corporation. Article 1302-7.06 of the Texas
Miscellaneous Corporation Laws Act authorizes Texas corporations, such as
Vertex, 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 Vertex's Restated Articles of Incorporation, as amended, which are filed
herewith as Exhibit 4.1, that eliminates the liability of directors of Vertex
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.
II-1
<PAGE> 15
Vertex's Restated Articles of Incorporation and Bylaws 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. Vertex 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.
The above discussions of Article 1302-7.06 of the Texas Miscellaneous
Corporation Law Act, Article 2.02-1 of the Texas Business Corporation Act and
of Vertex'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 Vertex's Restated Articles of Incorporation and
Bylaws, as amended.
ITEM 16. EXHIBITS.
The information required by this Item 16 is set forth in the Index to
Exhibits accompanying this Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) Rule 415 Offering.
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 of 1933;
(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 Commission 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; 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 (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 Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered
II-2
<PAGE> 16
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) Filings incorporating subsequent Exchange Act documents by reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(h) Request for acceleration of effective date.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in Item 15 above, 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.
II-3
<PAGE> 17
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-3 and has duly caused this
Post-Effective Amendment No. 1 to the foregoing Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Kilgore, State of Texas, on March 5, 1999.
VERTEX COMMUNICATIONS CORPORATION
(Registrant)
By: /s/ J. Rex Vardeman
------------------------------------------
J. Rex Vardeman
Chairman of the Board,
President and Chief Executive Officer
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to the foregoing Registration Statement has
been signed by the following persons in the capacities and on the date
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J. Rex Vardeman Chairman of the Board, President and March 5, 1999
- ----------------------------------------- Chief Executive Officer and Director
J. Rex Vardeman (Principal Executive Officer)
/s/ James D. Carter Vice President and Chief Financial Officer, March 5, 1999
- ----------------------------------------- Treasurer and Director (Principal
James D. Carter Financial and Accounting Officer)
/s/ A. Don Branum Senior Vice President and Director March 5, 1999
- -----------------------------------------
A. Don Branum
/s/ Donald E. Heitzman, Sr. Director March 5, 1999
- ------------------------------------------
Donald E. Heitzman, Sr.
/s/ John G. Farmer Director March 5, 1999
- -----------------------------------------
John G. Farmer
/s/ Rein Luik Director March 5, 1999
- -----------------------------------------
Rein Luik
/s/ Bill R. Womble Director March 5, 1999
- -----------------------------------------
Bill R. Womble
</TABLE>
II-4
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<S> <C>
4.1*.......... Restated Articles of Incorporation of Vertex and Amendments No. 1 and No. 2 thereto
4.2*.......... Bylaws of Vertex and Amendments No. 1 and No. 2 thereto
5.1*.......... Opinion of Thompson & Knight, P.C., regarding legality of shares
23.1*.......... Consent of counsel (included in the opinion of Thompson & Knight, P.C. filed herewith as
Exhibit 5.1)
23.2**......... Consent of independent accountants
24*............ Power of Attorney
</TABLE>
- --------------------
* Filed on May 22, 1998 as Exhibits to this Registration Statement.
** Filed herewith.
<PAGE> 1
EXHIBIT 23.2
VERTEX COMMUNICATIONS CORPORATION
EXHIBIT 23.2
TO
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<PAGE> 2
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement No. 333-53391 of our reports
dated October 23, 1998, included in Vertex Communications Corporation's Form
10-K for the year ended September 30, 1998, and to all references to our Firm
included in the registration statement.
ARTHUR ANDERSEN LLP
Dallas, Texas
March 5, 1999
