As filed with the Securities and Exchange Commission on April 26, 2004
Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CALIFORNIA AMPLIFIER, INC.
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(Exact Name of Registrant as Specified in its Charter)
Delaware 95-3647070
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1401 North Rice Avenue
Oxnard, CA 93030
(805) 987-9000
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(Address of Principal Executive Offices) (Zip Code)
Vytek Wireless, Inc. 2000 Stock Option Plan
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(Full Title of the Plan)
Fred Sturm
President Chief Executive Officer
California Amplifier, Inc.
1401 North Rice Avenue
Oxnard, CA 93030
(805) 987-9000
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(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
with a copy to:
Peter F. Ziegler
Gibson, Dunn & Crutcher LLP
333 S. Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price per Offering Amount of
Registered(1) Registered(2)(3) Share(4) Price(4) Registration
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Fee(4)(5)
Common Stock, 460,726 $13.00 $5,989,438 $758.86
par value
$0.01 per share
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(1) Includes associated preferred share rights to purchase shares of the
Registrant's common stock pursuant to the Registrant's shareholder
rights plan, which rights are not currently separable from the shares
of common stock and are not currently exercisable.
(2) Based on the number of shares of Vytek Corporation ("Vytek") common
stock, par value $0.01 per share (the "Vytek Common Stock"), that was
reserved for issuance in connection with the Vytek Wireless, Inc.
2000 Stock Option Plan, as amended (the "Plan"), as of the close of
business on April 9, 2004, that was converted into the right to
receive 0.083862 of a share of the Registrant's common stock, par
value $0.01 per share ("Registrant Common Stock"), upon the
consummation of the merger contemplated in the Agreement and Plan of
Merger and Reorganization, dated as of December 23, 2003, among the
Registrant, Mobile Acquisition Sub, Inc. and Vytek.
(3) The Registrant previously registered 8,318,122 shares of Registrant
Common Stock, under its Registration Statement on Form S-4 (No. 33-
112851) (the "Form S-4"), which was declared effective on March 11,
2004, of which 304,822 shares of Registrant Common Stock, were
registered in connection with the Plan. The maximum number of
8,318,122 equals the sum of (i) 8,200,000 shares, the fixed number of
shares of California Amplifier common stock issuable under the Merger
Agreement to Vytek stockholders and holders of in-the-money options
and warrants, (ii) the product of (a) 1,222,878 the total number of
shares of Vytek common stock issuable pursuant to outstanding out-of-
the-money options and (b) 0.083151, the approximate common stock
exchange ratio, (iii) the product of (a) 6,178, the total number of
shares of Vytek common stock issuable pursuant to outstanding out-of-
the-money warrants and (b) 0.083151, the approximate common stock
exchange ratio and (iv) the product of (a) 63,017 the total number of
shares of Vytek Series A Preferred stock issuable pursuant to
outstanding out-of-the-money warrants and (b) 0.252732, the Series A
exchange ratio. The Registrant hereby registers an additional
155,904 shares of Registrant Common Stock, based on the aggregate
number of Vytek Common Stock reserved, but not issued under the Plan,
multiplied by the actual exchange ratio of 0.083862 of a share of
Registrant Common Stock.
(4) Estimated in accordance with Rules 457(h) and 457(c) under the
Securities Act of 1933, as amended (the "Securities Act"), solely for
the purpose of calculating the total registration fee. The price per
share and aggregate offering price are based upon the average of the
high and low prices of the Registrant Common Stock, as reported on
the NASDAQ National Market on April 23, 2004 (w/in five days of
filing).
(5) A registration fee of $17.23 was previously paid in connection with
the registration of 8,318,122 shares of the Registrant Common Stock
under the Form S-4, of which $0.63 was in connection with the
registration of 304,822 shares of Registrant Common Stock. The
registration fee paid under the Form S-4 was calculated pursuant to
Rules 457(f)(2) under the Securities Act of 1933, as amended.
Because there was no market for Vytek's securities and Vytek has an
accumulated capital deficit, the proposed maximum offering price
under the Form S-4 was $136,021. Pursuant to Rule 457(p) of the
Securities Act, the registration fee for this Registration Statement
is offset by the $0.63 previously paid under the Form S-4, and as a
result, $758.26 is owed pursuant to this Registration Statement.
INTRODUCTION
This Registration Statement on Form S-8 is filed by California
Amplifier, Inc., a Delaware corporation (the "Registrant"), relating to
460,726 shares of its common stock, par value $0.01 per share (the
"Registrant Common Stock"), issuable to eligible persons under the Vytek
Wireless, Inc. 2000 Stock Option Plan, as amended (the "Plan"), as assumed
by the Registrant pursuant to the terms of the Agreement and Plan of Merger
and Reorganization, dated as of December 23, 2003, among the Registrant,
Mobile Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of the Registrant, and Vytek Corporation, a Delaware corporation.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, which previously have been filed by the
Registrant with the Commission, are incorporated herein by reference and
made a part hereof:
(i) The Registrant's Annual Report on Form 10-K for the fiscal
year ended February 28, 2003 filed on May 30, 2003;
(ii) The Registrant's Quarterly Reports on Forms 10-Q for the
quarters ended May 31, August 31 and November 30, 2003 as filed July 11,
October 2 and December 31, 2003, respectively;
(iii) The Registrant's Current Reports on Form 8-K filed on April
25 (Item 7), June 19 (Item 7), October 2 (Item 7), October 31 (Item 7), and
December 23, 2003 (Item 5 and Item 7) and January 5, February 25, February
27, March 11, March 19, April 9, April 13, April 21 and April 26, 2004;
(iv) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form S-1/A, filed with the
Commission on March 25, 1993, including any amendment or report filed for
the purpose of updating such description; and
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") after the date of this Registration Statement and prior
to the filing of a post-effective amendment hereto, which indicates that all
securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
date of filing of such documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the
extent that a subsequently filed document or a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated herein by reference modifies or supersedes such document or
such statement in such document. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Registration Statement. Subject to the foregoing, all
information appearing in this Registration Statement is so qualified in its
entirety by the information appearing in the documents incorporated by
reference.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, allows a corporation to include a provision in its certificate of
incorporation limiting or eliminating the personal liability of directors of
the corporation to the corporation or its stockholders for monetary damages
for a breach of fiduciary duty as a director, except where the director (a)
breached his/her duty of loyalty to the corporation or its stockholders, (b)
acted not in good faith or in knowing violation of a law, (c) authorized the
payment of a dividend or approved a stock repurchase in violation of
Delaware General Corporation Law or (d) obtained an improper personal
benefit from a transaction.
Article VII of the Registrant's Certificate of Incorporation, as
amended, and Article VII of its Bylaws, as amended, provide for the
indemnification by the Company of each director, officer and employee of the
Company to the fullest extent permitted by the Delaware General Corporation
law, as the same exists or may hereafter be amended. Section 145 of the
Delaware General Corporation Law provides in relevant part that a
corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason of the fact
that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit
or proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful.
In addition, Section 145 provides that a corporation may indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper. Delaware law further
provides that nothing in the above-described provisions shall be deemed
exclusive of any other rights to indemnification or advancement of expenses
to which any person may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
In October 1987, the Company effectively entered into, and the
stockholders of the Company ratified, an indemnity agreement with Arthur H.
Hausman. In March 1994, the Company entered into a separate indemnity
agreement with Ira Coron. The purpose of the indemnity agreements is to
provide the broadest possible indemnification of the persons entering into
the indemnity agreement consistent with applicable law.
Should Section 2115 of the California Corporations Code apply to the
Registrant, the Registrant's ability to indemnify its directors,
officers, employees and agents pursuant to the Certificate of Incorporation,
the Bylaws, the Indemnity Agreements or otherwise may be further limited in
accordance with the provisions of the California Corporations Code made
applicable by Section 2115.
The Company maintains an insurance policy that indemnifies directors
and officers against certain liabilities under certain circumstances.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Exhibit
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4.1 Vytek Wireless, Inc. 2000 Stock Option Plan, as amended,
filed as Exhibit 10.14 of Registrant's Registration
Statement on Form S-4 as filed February 13, 2004,
incorporated herein by reference.
4.2 Certificate of Incorporation dated September 4, 1987,
filed as Exhibit 3.1 to the Registrant's Statement on
Form S-1 (33-59702) and filed as Exhibit 3.1 to Form
10-K for the year ended February 27, 1999, and
incorporated herein by reference.
4.3 Amendment to Certificate of Incorporation filed with the
Delaware Secretary of State on September 19, 1996 and
filed as Exhibit 3.1.1 to Registrant's Annual Report on
Form 10-K for the year ended February 17, 1999, and
incorporated herein by reference.
4.4 By-Laws of Registrant, as amended, filed as Exhibit 3.2
to the Registrant's Current Report on Form 8-K as filed
February 28, 1992, and incorporated herein by reference.
4.5 Amendment to By-Laws of Registrant, filed as Exhibit 99.2
to the Registrant's Current Report on Form 8-K as filed
April 21, 2004, and incorporated herein by reference.
4.6 Amended and Restated Rights Agreement, amended and
restated as of September 5, 2001, by and between
Registrant and Mellon Investor Services LLC, as Rights
Agent filed as Exhibit 4.1 to the Registrant's Current
Report on Form 8-K filed on September 6, 2001, and
incorporated herein by reference.
5.1* Opinion of Gibson, Dunn & Crutcher LLP.
23.1* Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
23.2* Consent of KPMG LLP.
24.1* Power of Attorney (on signature page).
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* Filed herewith.
Item 9. Undertakings
(1) The undersigned Registrant hereby undertakes:
(a) 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 this
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 this 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 and 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 percent 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 (1)(a)(i) and (1)(a)(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 Exchange Act that are incorporated by
reference in this registration statement.
(b) 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.
(c) 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.
(2) 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.
(3) 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 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.
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 the requirements for filing on Form S-8 and has duly
caused this Form S-8 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Oxnard, State of California, on
this 26th day of April, 2004.
California Amplifier, Inc.
By: /s/ Fred Sturm
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Fred Sturm
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint each of Messrs. Fred Sturm
and Richard Vitelle, each with full power of substitution and full power to
act without the other, his true and lawful attorney-in-fact and agent to act
for him in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement and any subsequent registration statement the Company may hereafter
file with the Securities and Exchange Commission pursuant to Rule 462(b)
under the Securities Act of 1933 to register additional shares of common
stock, and to file this Registration Statement, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in order to effectuate the same as fully,
to all intents and purposes, as they or he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents,
or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 as
amended, this Registration Statement has been signed below by the following
persons in the capacities indicated below and on the dates indicated.
Signature Title Date
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President, Chief Executive April 26, 2004
Officer and Director
(Principal Executive Officer)
/s/ Fred Sturm
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Fred Sturm
Vice President of Finance,
Chief Financial Officer and
Treasurer (Principal Financial April 26, 2004
and Accounting Officer)
/s/ Richard Vitelle
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Richard Vitelle
Chairman of the Board April 26, 2004
/s/ Ira Coron
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Ira Coron
Director April 26, 2004
/s/ Richard Gold
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Richard Gold
Director April 26, 2004
/s/ Arthur Hausman
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Arthur Hausman
Director April 26, 2004
/s/ Albert Moyer
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Albert Moyer
Director April 26, 2004
/s/ James Ousley
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James Ousley
Director April 26, 2004
/s/ Frank Perna
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Frank Perna, Jr.
Director April 26, 2004
/s/ Thomas Ringer
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Thomas Ringer
EXHIBIT INDEX
Exhibit
Number Exhibit
4.1 Vytek Wireless, Inc. 2000 Stock Option Plan, as amended, filed
as Exhibit 10.14 of Registrant's Registration Statement on Form
S-4 as filed February 13, 2004, incorporated herein by
reference.
4.2 Certificate of Incorporation dated September 4, 1987, filed as
Exhibit 3.1 to Registrant's Quarterly Report on Form 10-Q for
the period ended August 31, 1996 as filed on October 9, 1996,
and incorporated herein by reference.
4.3 Amendment to Certificate of Incorporation dated September 18,
1996, filed as Exhibit 3.1.1 to Registrant's Quarterly Report on
Form 10-Q for the period ended August 31, 1996 as filed on
October 9, 1996, and incorporated herein by reference.
4.4 By-Laws of Registrant, as amended, filed as Exhibit 3.2 to the
Registrant's Current Report on Form 8-K as filed February 28,
1992, and incorporated herein by reference.
4.5 Amendment to By-Laws of Registrant, filed as Exhibit 99.2 to the
Registrant's Current Report on Form 8-K as filed April 21, 2004,
and incorporated herein by reference.
4.6 Amended and Restated Rights Agreement, amended and restated as
of September 5, 2001, by and between Registrant and Mellon
Investor Services LLC, as Rights Agent filed as Exhibit 4.1 to
the Registrant's Current Report on Form 8-K filed on
September 6, 2001, and incorporated herein by reference.
5.1* Opinion of Gibson, Dunn & Crutcher LLP.
23.1* Consent of Gibson, Dunn & Crutcher LLP (included
in Exhibit 5.1).
23.2* Consent of KPMG LLP.
24.1* Power of Attorney (on signature page).
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* Filed herewith.