As filed with the Securities and Exchange Commission on April 15, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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MERIX CORPORATION
(Exact name of registrant as specified in its charter)
OREGON 93-1135197
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
1521 Poplar Lane
Forest Grove, OR 97116
(Address of Principal (Zip Code)
Executive Offices)
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Merix Corporation
1994 Stock Incentive Plan, as amended
(Full title of plan)
Janie S. Brown
Vice President, Treasurer and Chief Financial Officer
Merix Corporation
1521 Poplar Lane
Forest Grove, OR 97116
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (503) 359-9300
Copy to:
Margaret Hill Noto
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2300
Portland, Oregon 97204-1268
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CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to Proposed Maximum Offering Proposed Maximum Amount of
to Be Registered be Registered Price Per Share(1) Aggregate Offering Price (1) Registration Fee
- ------------------- ---------------- ------------------------- ---------------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 1,100,000 Shares $5.125 $5,637,500 $1,567.23
- ----------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and 457(h) under the Securities Act of 1933. Of the
shares to be registered, 413,994 shares are subject to options with an
aggregate exercise price of $2,318,367. The calculation of the registration
fee for the balance of the shares is based on $5.125, which was the average
of the high and low prices of the Common Stock on April 13, 1999 as
reported in The Wall Street Journal for Nasdaq National Market issues.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
----------------------------------------
The following documents filed by Merix Corporation (the "Company")
with the Securities and Exchange Commission are incorporated herein by
reference:
(a) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") or the latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933 (the "Securities Act") that contains audited
financial statements for the Company's latest fiscal year for which
such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
annual report or prospectus referred to in (a) above.
(c) The description of the authorized capital stock of the
Company contained in the Company's registration statement filed under
section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating the description.
All reports and other documents subsequently filed by the Company
pursuant to sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports and
documents.
Item 4. Description of Securities.
--------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
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Item 6. Indemnification of Directors and Officers.
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Article VI (the "Article") of the Articles of Incorporation of the
Registrant requires the Registrant to indemnify directors and officers to the
fullest extent not prohibited by law. The right to and amount of indemnification
will be ultimately subject to determination by a court that indemnification in
the circumstances presented is consistent with public policy and other
provisions of law. It is likely, however, that the Article would require
indemnification at least to the extent that indemnification is authorized by the
Oregon Business Corporation Act (the "Act"). The effect of the Act is summarized
as follows:
(a) The Act permits a corporation to grant a right of
indemnification in respect of any pending, threatened or completed
action, suit or proceeding ("proceeding"), other than an action by or
in the right of the corporation, against expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred, provided the person
concerned acted in good faith and in a manner the person reasonably
believed to be in or at least not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful.
Indemnification is not permitted in connection with a proceeding in
which a person is adjudged liable on the basis that personal benefit
was improperly received unless indemnification is permitted by a court
upon a finding that the person is fairly and reasonably entitled to
indemnification in view of all of the relevant circumstances. The
termination of a proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the person did not meet the prescribed standard of
conduct.
(b) The Act permits a corporation to grant a right of
indemnification in respect of any proceeding by or in the right of the
corporation against the reasonable expenses (including attorneys'
fees) incurred if the person concerned acted in good faith and in a
manner the person reasonably believed to be in or at least not opposed
to the best interests of the corporation, except that no
indemnification may be granted if such person is adjudged to be liable
to the corporation unless permitted by a court.
(c) The corporation may not indemnify a person in respect of a
proceeding described in (a) or (b) above unless it is determined in
the specific case that indemnification is permissible because the
person has met the prescribed standard of conduct by any one of the
following: (i) the Board of Directors, by a majority vote of a quorum
consisting of directors not at the time parties to the proceeding,
(ii) if a quorum of directors not party to the proceeding cannot be
obtained, by a majority vote of a committee of two or more directors
not at the time parties to the proceeding, (iii) by special legal
counsel selected by the Board of Directors or such committee thereof,
as described in (i) and (ii) above, or (iv) by the shareholders.
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Indemnification can also be ordered by a court if the court determines
that indemnification is fair in view of all of the relevant
circumstances. Notwithstanding the foregoing, every person who has
been wholly successful, on the merits or otherwise, in defense of a
proceeding described in (a) or (b) is entitled to be indemnified as a
matter of right against reasonable expenses incurred in connection
with the proceeding.
(d) The corporation may pay for or reimburse the reasonable
expenses incurred in defending a proceeding in advance of the final
disposition thereof if the director or officer receiving the advance
furnishes (i) a written affirmation of his or her good faith belief
that he or she has met the prescribed standard of conduct, and (ii) a
written undertaking to repay the advance in the event indemnification
is not authorized.
The Registrant has entered into indemnification agreements with each
of the Registrant's executive officers and directors. In general, these
indemnification agreements require the Registrant to indemnify such persons
against certain liabilities, expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred (including expenses of a derivative
action) in connection with any proceeding, whether actual or threatened, to
which any such person may be made a party by reason of the fact that such person
is or was a director and/or an officer of the Registrant or any of its
affiliated enterprises. Such indemnification agreements also set forth certain
procedures, including the advancement of expenses, that apply in the event of a
claim for indemnification.
The rights of indemnification described above are not exclusive of any
other rights of indemnification to which officers or directors may be entitled
under any statute, agreement, vote of shareholders, action of directors, or
otherwise.
The Registrant has directors' and officers' liability insurance
coverage that insures directors and officers of the Registrant and its
subsidiaries against certain liabilities.
Item 7. Exemption From Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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4.1 Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1, File No. 33-77348).
4.2 Bylaws, as amended, of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form 10-K for
the fiscal year ending May 31, 1997).
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4.3 Shareholder Rights Agreement dated March 25, 1997
(incorporated by reference to the Company's Current Report on
Form 8-K, dated March 25, 1997, File No. 0- 23818).
5.1 Opinion of Stoel Rives LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Stoel Rives LLP (see Exhibit 5.1).
24.1 Powers of Attorney.
Item 9. Undertakings.
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(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of the 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.
(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 with or furnished to the
Commission by the registrant
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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, 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 the offering.
(b) 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 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) 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 Securities and Exchange
Commission 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Forest Grove, State of Oregon, on April 15, 1999.
MERIX CORPORATION
By JANIE S. BROWN
--------------------------------------
Janie S. Brown,
Vice President, Treasurer, and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on this 15th day of April, 1999.
Signature Title
--------- -----
*DEBORAH A. COLEMAN
- ---------------------------------- Chair of the Board of Directors,
Deborah A. Coleman Chief Executive Officer, and President
(Principal Executive Officer)
JANIE S. BROWN
- ---------------------------------- Vice President and Chief Financial
Janie S. Brown Officer (Principal Financial and
Accounting Officer)
*ROBERT C. STRANDBERG Director
- ----------------------------------
Robert C. Strandberg
*CARL W. NEUN Director
- ----------------------------------
Carl W. Neun
*CARLENE M. ELLIS Director
- ----------------------------------
Carlene M. Ellis
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*DR. KOICHI NISHIMURA Director
- ----------------------------------
Dr. Koichi Nishimura
*WILLIAM C. MCCORMICK Director
- ----------------------------------
William C. McCormick
*By JANIE S. BROWN
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Janie S. Brown, Attorney-in-fact
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EXHIBIT INDEX
Exhibit
Number Document Description
- ------- --------------------
4.1 Articles of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1, File No. 33-77348).
4.2 Bylaws, as amended, of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form 10-K for
the fiscal year ending May 31, 1997).
4.3 Shareholder Rights Agreement dated March 25, 1997
(incorporated by reference to the Company's Current Report on
Form 8-K, dated March 25, 1997, File No. 0-23818).
5.1 Opinion of Stoel Rives LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Stoel Rives LLP (see Exhibit 5.1).
24.1 Powers of Attorney.
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EXHIBIT 5.1
April 15, 1999
Board of Directors
Merix Corporation
1521 Poplar Lane
Forest Grove, OR 97116
We have acted as counsel for Merix Corporation (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
1,100,000 shares of common stock (the "Shares") of the Company issuable in
connection with the Company's 1994 Stock Incentive Plan, as amended (the
"Plan"). We have reviewed the corporate actions of the Company in connection
with this matter and have examined those documents, corporate records, and other
instruments we deemed necessary for the purposes of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the state of Oregon; and
2. The Shares have been duly authorized and, when issued pursuant to
the Plan and in accordance with the resolutions adopted by the Board of
Directors of the Company, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
STOEL RIVES LLP
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Merix Corporation on Form S-8 of our report dated June 25, 1998
(June 30, 1998 regarding stock option repricing, see Note 9) appearing in the
Annual Report on Form 10-K of Merix Corporation for the year ended May 30, 1998.
DELOITTE & TOUCHE LLP
Portland, Oregon
April 15, 1999
EXHIBIT 24.1
POWER OF ATTORNEY
(Registration Statement on Form S-8)
The undersigned, an officer and/or director of MERIX CORPORATION (the
"Company"), constitutes and appoints DEBORAH A. COLEMAN and JANIE S. BROWN, and
each of them, his or her true and lawful attorney and agent to do any and all
acts and things and to execute in his or her name (whether on behalf of the
Company or as an officer or director of the Company, or otherwise) any and all
instruments that such attorney and agent may deem necessary or advisable in
order to enable the Company to comply with the Securities Act of 1933, as
amended (the "Act"), and any requirements of the Securities and Exchange
Commission (the "SEC") in respect thereof, in connection with the registration
under the Act of 1,100,000 shares of Common Stock of the Company reserved for
issuance under the 1994 Stock Incentive Plan, as amended, including
specifically, but without limitation, power and authority to sign his or her
name (whether on behalf of the Company or as an officer or director of the
Company, or otherwise) to a Registration Statement on Form S-8 and any amendment
thereto (including any post-effective amendment) or application for amendment
thereto in respect to such Common Stock or any exhibits filed therewith; and to
file the same with the SEC; and the undersigned ratifies and confirms all that
such attorney and agent shall do or cause to be done by virtue hereof.
DATED: March 25, 1999
DEBORAH A. COLEMAN CARLENE M. ELLIS
- ---------------------------------- ----------------------------------
Deborah A. Coleman Carlene M. Ellis
ROBERT C. STRANDBERG DR. KOICHI NISHIMURA
- ---------------------------------- ----------------------------------
Robert C. Strandberg Dr. Koichi Nishimura
CARL W. NEUN WILLIAM C. MCCORMICK
- ---------------------------------- ----------------------------------
Carl W. Neun William C. McCormick
