As filed with the Securities and Exchange Commission on November 9, 2001
Registration No. 333-70422
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ANAREN MICROWAVE, INC.
(Exact name of registrant as specified in its charter)
New York 16-0928561
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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6635 Kirkville Road
East Syracuse, New York 13057
(315) 432-8909
(Address and telephone number of registrant's principal executive offices)
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Lawrence A. Sala, President and Chief Executive Officer
6635 Kirkville Road
East Syracuse, New York 13057
(315) 432-8909
(Name, address and telephone number of agent for service)
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It is requested that copies of notices and communications be sent to:
David M. Ferrara, Esq.
Bond, Schoeneck & King, LLP
One Lincoln Center
Syracuse, New York 13202
(315) 422-0121
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Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after the effective date of 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. [ ]
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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. [ ]
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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The information in this prospectus is not complete and may be changed without
notice. The selling shareholders may not sell these securities until the
registration statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities, and the
selling shareholders are not soliciting offers to buy these securities in any
state where the offer or sale of these securities is not permitted.
Prospectus (Not Complete)
Issued November 9, 2001
95,704 Shares
[Anaren Logo]
Common Stock
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This prospectus relates to the public offering, which is not being
underwritten, of up to 95,704 shares of our common stock owned by the selling
shareholders identified in this prospectus. We issued these shares to the
selling shareholders in connection with our acquisition of all of the
outstanding capital stock of Amitron, Inc. in August 2001.
The selling shareholders may sell their shares of our common stock in a
number of different ways and at varying prices. This prospectus contains more
information about how the selling shareholders may sell their shares in the
section entitled "Plan of Distribution" starting on page 11.
We are not selling any shares of our common stock and will not receive any
proceeds from the sale of the shares offered pursuant to this prospectus.
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Our common stock is traded on the Nasdaq National Market under the symbol
"ANEN." The last reported sale price of our common stock on the Nasdaq National
Market on November 5, 2001 was $15.85 per share.
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Investing in our common stock involves certain risks. See "Risk Factors"
beginning on page 2.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
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, 2001
TABLE OF CONTENTS
Page
----
Prospectus Summary.......................................................... 1
Risk Factors................................................................ 2
Forward-Looking Statements.................................................. 10
Use of Proceeds............................................................. 10
Selling Shareholders........................................................ 10
Plan of Distribution........................................................ 11
Legal Matters............................................................... 13
Experts..................................................................... 13
Where You Can Find More Information......................................... 13
Incorporation of Certain Documents by Reference............................. 13
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You should rely only on the information contained in this prospectus. We
have not authorized any other person to provide you with information that is
different. The selling shareholders are offering to sell, and seeking offers to
buy, shares of common stock only in jurisdictions where offers and sales are
permitted. This prospectus may only be used where it is legal to sell these
securities. The information in this document may only be accurate on the date of
this prospectus, regardless of the time of delivery of this prospectus or of any
sale of our equity shares.
"Anaren" and the Anaren Logo are our trademarks. This prospectus also
contains trademarks or servicemarks of other entities.
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PROSPECTUS SUMMARY
This summary highlights selected information incorporated by reference in
this prospectus. This summary does not contain all of the information that you
should consider before making an investment decision.
Anaren Microwave, Inc.
We design, develop, manufacture and sell microwave components and
assemblies for the wireless communications, satellite communications and defense
electronics markets. Our distinctive manufacturing and packaging techniques
enable us to cost-effectively produce compact, lightweight microwave products
for use in base stations for wireless communications systems, in satellites and
in defense electronics systems.
The global subscriber market for integrated voice, data and video
communications services continues to grow, although at a slower rate. Despite
this continued growth in subscriber demand, expenditures for capital
infrastructure equipment by service providers have declined substantially and
remain at relatively low levels.
Our technology addresses the demands of the wireless communications
markets for high-quality products manufactured in volume with continuous
improvements in performance and cost. We also provide satellite manufacturers
with enabling technologies that increase the capacity and flexibility of their
satellite communications systems.
Our strategy is to continue to use our proprietary Multi-Layer Stripline
technology, extensive microwave design libraries and turnkey design, development
and manufacturing capabilities to further expand our penetration in the wireless
communications, satellite communications and defense electronics markets.
Recent Developments
On August 31, 2001, we acquired all of the outstanding capital stock of
Amitron. Amitron, based in North Andover, Massachusetts, has approximately 80
employees and is primarily engaged in the manufacture of precision thick film
ceramic components and circuits for the medical, telecommunications, and defense
electronics markets. The purchase price for Amitron was approximately $9.8
million in cash and 95,704 shares of our common stock. We will account for this
acquisition as a purchase transaction. The 95,704 shares of common stock, all of
which are offered for resale pursuant to this prospectus, represented 0.4% of
the outstanding shares of our common stock as of November 5, 2001.
Effective October 1, 2001, we acquired all of the outstanding capital
stock of 5M Company Europe B.V. 5M is a specialty printed curcuit board
manufacturer based in Almelo, Netherlands. The purchase price for 5M was
approximately $3.6 million in cash. We will account for this acquisition as a
purchase transaction.
Additional Information
We were incorporated in New York in 1967. Our executive offices are
located at 6635 Kirkville Road, East Syracuse, New York 13057, and our phone
number is (315) 432-8909. Our web site is located at www.anaren.com. The
information on our web site is not a part of this prospectus.
SUMMARY CONSOLIDATED FINANCIAL DATA
(in thousands, except per share data)
Years Ended
------------------------------------
June 30, June 30, June 30,
2001 2000 1999
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Statement of Operations Data:
Net Sales ............................ $ 84,825 $ 60,172 $ 45,739
Gross profit ......................... 32,298 25,098 18,028
Operating income ..................... 11,611 11,454 7,796
Net income 12,214 9,641 6,950
Net income per common and
common equivalent share:
Basic ............................. $ .55 $ .54 $ .42
Diluted ........................... $ .52 $ .50 $ .40
Shares used in computing net income
per common and common equivalent
share:
Basic ............................. 22,134 17,978 16,566
Diluted ........................... 23,455 19,299 17,310
Balance Sheet Data:
Cash and cash equivalents ............ $ 11,748 $ 6,179 $ 13,482
Working capital ...................... 146,677 106,271 39,053
Total assets ......................... 209,055 189,696 58,467
Long-term debt, less current
installments ........................ -- -- --
Stockholders' equity ................. 199,454 179,572 51,845
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RISK FACTORS
You should carefully consider the risks described below before investing
in our common stock. If any of the following risks actually occur, our business
could be harmed. This could cause the price of our stock to decline, and you may
lose part or all of your investment. This prospectus contains forward-looking
statements that involve risks and uncertainties, including statements about our
future plans, objectives, intentions and expectations. Many factors, including
those described below, could cause actual results to differ materially from
those discussed in any forward-looking statements.
Risks Related to Our Business
We rely on a limited number of original equipment manufacturers as customers and
the loss of one or more of them could harm our business.
We depend upon a small number of customers for a majority of our revenues.
During fiscal 2001, we had two customers that each accounted for more than 10%
of our net sales. During this period, approximately 15% of our net sales were to
Motorola and approximately 11% were to Boeing Satellite.
We anticipate that we will continue to sell products to a relatively small
group of customers. Delays in manufacturing or supply procurement or other
factors could potentially cause cancellation, reduction or delay in orders by a
significant customer or in shipments to a significant customer. In addition, we
design a substantial portion of our products to address the specific needs of
individual customers. Our future success depends significantly on the decision
of our current customers to continue to purchase products from us, as well as
the decision of prospective customers to develop and market wireless
communications systems that incorporate our products.
Our future success will also depend in part upon the financial condition
and success of our customers. Our customers' orders are affected by factors such
as:
o capital spending plans of wireless service providers;
o successful new product introductions;
o product life cycles;
o regulatory approvals;
o contract awards; and
o general economic conditions.
Capital expenditures by wireless service providers for infrastructure equipment
have decreased substantially.
Capital expenditures for wireless infrastructure equipment have declined
sharply since March 2001. As a result, we have experienced a number of
reductions in customer demand forecasts and delivery pushouts for our wireless
product lines. These reductions have resulted in a nearly 50% decline in net
sales by our Wireless group from the first quarter of fiscal 2001 to the first
quarter of fiscal 2002. It appears that unfavorable wireless market conditions
will potentially continue beyond calendar 2001.
2
We depend on a small number of suppliers for many of our component parts and
services.
We rely on our suppliers, or in some cases a limited group of suppliers,
to provide us with services and materials necessary for the manufacture of our
products. While we believe that substitute sources of supply at reasonably
similar costs are available for these and other products purchased, our reliance
on a limited group of suppliers involves several risks, including:
o potential inability to timely obtain critical materials or services;
o potential increase in raw materials costs or production costs;
o potential delays in delivery of raw materials or finished products;
and
o reduced control over reliability and quality of components or
assemblies, as outsourcing continues.
We do not have binding contractual commitments or other controls over our
suppliers and, therefore, cannot always rely upon the guaranteed availability of
the materials necessary for the manufacture of our products. If we are required
to seek alternative contract manufacturers or suppliers because we are unable to
obtain timely deliveries of acceptable quality from existing manufacturers or
suppliers, we could be forced to delay delivery of our products to our
customers. In addition, if our suppliers and contract manufacturers increase
their prices, we could suffer losses because we may be unable to recover these
cost increases under fixed price production commitments to our customers.
We may not effectively manage possible future growth.
The growth in size and complexity of our business and the expansion of our
product lines and customer base have placed significant demands on our
management and operations, and we expect that these demands will continue in the
future. Expansion, in combination with the complexity of the technology involved
in the manufacture of our products, demands an unusually high level of
managerial effectiveness in anticipating, planning, coordinating and meeting our
operational needs and the needs of our customers. Our systems, procedures or
controls may not be adequate to support our operations. Our management may not
be able to achieve the expansion necessary to exploit potential market
opportunities for our products. Our ability to compete effectively and to manage
future growth will depend on our ability to improve our manufacturing
capabilities to meet the high volume, low cost demands for the wireless market,
and will also require us to continue to implement and improve operational and
financial systems on a timely basis. We are currently in the process of updating
our entire computer system, which we believe will help us manage possible future
growth.
We may have difficulty integrating the business of the acquired companies.
Since February 2000, we completed the acquisitions of RF Power Components,
a manufacturer of electronic products based in Long Island, New York, the assets
of Ocean Microwave, Inc., a manufacturer of isolator and circulator
3
components based in Neptune, New Jersey, Amitron, a manufacturer of ceramic
components and circuits based in North Andover, Massachusetts and 5M, a
manufacturer of specialty printed circuit boards based in Almelo, Netherlands.
Integrating these businesses is an ongoing process. Before our acquisition of
these companies, each entity operated independently. We have experienced some
difficulties in integrating the acquired companies and our business, but to date
these difficulties have not had a material impact on our results. Future
material difficulties, however, could increase our operating costs, harm our
financial performance or cause the loss of customers or employees. In addition,
we may have inherited material undisclosed liabilities from the acquired
businesses.
We may pursue acquisitions and investments that could adversely affect our
business.
Our business strategy includes making acquisitions that complement our
existing technologies or provide new technologies, with the goal of enabling us
to capture increased dollar content on wireless communications infrastructure
equipment and to expand the potential market for our products. We have made four
such acquisitions since February 2000. In the future we may continue to make
acquisitions of and investments in businesses, products and technologies that
could complement or expand our business. If we identify an acquisition
candidate, we may not be able to successfully negotiate or finance the
acquisition or integrate the acquired businesses, products or technologies into
our existing business and products. To complete future acquisitions, we may
issue equity securities, incur debt, assume contingent liabilities or have
amortization expenses and write-downs of acquired assets, which could cause our
earnings per share to decline.
We rely principally on a single facility and our operations could be interrupted
by events beyond our control.
Our primary operations, including engineering, manufacturing, management
information systems, customer service, distribution and general administration,
are housed in a single facility in East Syracuse, New York. Any material
disruption in our operations at the East Syracuse facility due to fire, natural
disaster or otherwise, could materially harm our business, financial condition
and operating results.
Our quarterly operating results are difficult to predict and may fail to meet or
exceed the expectations of securities analysts or investors, causing our stock
price to fall.
Our quarterly results of operations may fluctuate significantly. Many
factors affect our results of operations for any particular fiscal quarter.
These factors include:
o the overall decrease in capital spending by telecommunications
service providers;
o the duration and degree of decline in the telecommunications
industry, particularly in the wireless telecommunications market;
o the timing, cancellation or rescheduling of orders and shipments
from our customers;
o the pricing and mix of products that we sell;
o our introduction of new products;
o the introduction of new competitors or competitive products;
o our ability to obtain components and subassemblies from contract
manufacturers and suppliers;
o variations in our ability to efficiently manufacture our products;
and
o fluctuations in our manufacturing yields caused by seasonal and
other factors.
4
As a result of these fluctuations, our performance in any one fiscal
quarter may not necessarily accurately reflect the outcome of our future
performance.
Our business could be harmed if we fail to protect our intellectual property.
Our success depends in part on our ability to protect our intellectual
property. We rely primarily on a combination of trade secret, know-how,
copyright and trademark laws and employee and third-party nondisclosure
agreements. We also limit access to proprietary information within our company
and by outside parties. The steps we have taken to protect our intellectual
property may not prevent misappropriation of our technology. Our competitors may
develop technologies that are similar or superior to our technology, duplicate
our technology or design around patents that we own. Litigation may be necessary
to enforce our intellectual property rights or to determine the validity and
scope of the proprietary rights of others. Even if successful, litigation could
be costly and could divert important management resources. If our intellectual
property is not adequately protected, our business, financial condition and
operating results could be materially harmed.
Future claims by others that we have violated their intellectual property rights
could prevent the sale of our products and require us to pay damages.
Third parties may claim that our products infringe upon their intellectual
property rights. Defending against third party infringement claims could be
costly and divert important management resources. Furthermore, if these claims
are successful, we may have to pay substantial royalties or damages, remove the
infringing products from the marketplace or expend substantial amounts in order
to modify the products so that they no longer infringe on the third party's
rights.
We may experience cost overruns and order cancellations under fixed price
contracts, and may not realize any benefit from research and development efforts
under these contracts.
Our customers establish demanding specifications for product performance,
reliability and cost. The majority of our contracts with prime contractors to
United States and foreign governmental departments or their agencies, as well as
satellite communications customers, are fixed-price contracts, some of which
require delivery over periods of time in excess of one year. With this type of
contract, we must agree to deliver products at an agreed upon price, except for
costs incurred as a result of change orders issued by the customer. Some of
these contracts contain provisions for price escalation due to inflation
incurred between the effective contract date, and some are subject to various
statutes, regulations and provisions governing defense contracts. Most of these
contracts contain termination clauses, which allow the customer to terminate the
contract for convenience upon proper notice and payment of predetermined
charges. Although we have not recently experienced any cost overruns on our
space and defense contracts, we face the risk of experiencing cost overruns or
order cancellation if our products cost more to produce due to design or
manufacturing inefficiencies, increased material, component or labor costs, or
other unanticipated expenses. There is also risk that our products may be
returned for failing to meet our customers' expectations or for an upgrade, in
which case we may incur additional costs to replace the returned products or to
perform the upgrade. In addition, we often make significant investments in
design and engineering of new products for customers without any commitment by
the customer for the future purchase of the products. If we fail to receive
initial or follow-on orders for these products and are unable to apply our
research and development efforts in other contexts, we will receive no benefit
for funds expended in these efforts. These fixed-price contracts contain certain
termination charges, although not generally significant enough to deter
terminations. Delivery pushouts can and do occur without penalty.
Our backlog may not result in future sales.
Backlog for the wireless group primarily represents firm orders for
surface mount products (i.e., orders for a fixed quantity of component products)
and signed purchase orders for custom components (i.e., orders for specific
custom sub-assemblies) due to ship within the next four to six weeks. Orders in
the space and defense group backlog are covered by signed contracts or purchase
orders for specific products. Backlog is not necessarily indicative of future
sales. In addition, our wireless customers may cancel or defer orders without
significant penalty. Cancellations of orders or termination or reduction of
purchased quantities on orders in progress could materially harm our business,
financial condition and
5
operating results. We do not believe that our backlog as of any particular date
is representative of actual sales for any succeeding period, and we do not know
whether our current order backlog will necessarily lead to sales in any future
period.
Our wireless customers' annual procurement forecast may not result in future
sales.
Our major wireless communications customers provide us with procurement
forecasts on an annual basis, which we use to set the price for our products to
be sold to them during the year. These forecasts are subject to weekly
adjustments by our customers. We negotiate the prices of our products based in
part upon the volume provided in the annual forecasts, and we are generally
unable to increase our prices in response to any decrease in the volume actually
purchased by the customers as compared to the forecasted amount. Accordingly, if
these customers purchase less than the forecasted amount of products, an
occurrence which has happened in certain circumstances and may recur in the
future, our operating margins could suffer. In addition, we may be required to
carry these unsold products in our inventory for an extended period of time. We
purchase raw materials from our suppliers in anticipation of the forecasted
order. If our customers purchase fewer products than we expect, we may be unable
to use all of the raw materials we purchased.
Our business may be harmed if we fail to comply with environmental laws or
regulations.
We are subject to a variety of local, state and federal governmental
regulations relating to the storage, discharge, handling, emission, generation,
manufacture and disposal of toxic or other hazardous substances used to
manufacture our -products. If we fail to comply with these regulations,
substantial fines could be imposed on us, and we could be required to suspend
production, alter manufacturing processes or cease operations.
News reports have asserted that power levels associated with hand held
cellular telephones and infrastructure equipment may pose health risks. If it
were determined or perceived that electromagnetic waves carried through wireless
communications equipment create a health risk, the market for our wireless
customers' products could be severely reduced, which could in turn materially
harm our business, financial condition and operating results. Moreover, if
wireless communications systems or other systems or devices that rely on or
incorporate our products are determined or alleged to create a health risk, we
could be named as a defendant, and held liable, in product liability lawsuits
which could materially harm our business, financial condition and operating
results.
Risks Related to Our Industry
We depend on the future development of the wireless and satellite communications
markets, which is difficult to predict.
We believe that our future growth depends in part on the success of the
wireless and satellite communications markets. A number of the markets for our
products in the wireless and satellite communications area have only recently
begun to develop. It is difficult to predict the rate at which these markets
will grow, if at all. Existing or potential wireless and satellite
communications applications for our products may fail to develop or may erode
for many different reasons, including:
o the inability of wireless and satellite communications services to
handle growing demands for faster transmission of increasing amounts
of data for broadband applications;
o poor cost-effectiveness and poor performance of wireless and
satellite communications services compared to other forms of
broadband access;
o insufficient consumer demand for wireless products or services; and
o real or perceived security and health risks associated with wireless
communications.
6
If the markets for our products in wireless and satellite communications
fail to grow, or grow more slowly than anticipated, our business, financial
condition and operating results could be harmed.
The markets which we serve are very competitive, and if we do not compete
effectively in our markets, we will lose sales and have lower margins.
The markets for our products are extremely competitive and are
characterized by rapid technological change, new product development and
evolving industry standards. In addition, price competition is intense and
significant price erosion generally occurs over the life of a product. We face
competition from component manufacturers which have integration capabilities,
including KDI, M/A-Com, a division of Tyco International, Merrimac Industries,
Filtronic, Smith Industries and Mini-Circuits. However, we believe that our
primary competition is from the internal capabilities of large communications
original equipment manufacturers, or OEMs, and defense prime contractors. Our
future success will depend upon the extent to which these parties elect to
purchase from outside sources rather than manufacture their own microwave
components. Our customers and large manufacturers of components could enter into
the market for microwave products and compete directly with us. Many of our
current and potential competitors have substantially greater financial,
technical, marketing, distribution and other resources than us, and have greater
name recognition and market acceptance of their products and technologies. Our
competitors may develop new technologies or products that may offer superior
price or performance features, and new products or technologies may render our
customers' products obsolete.
We face continuing pressure to reduce the average selling price of our wireless
products.
Many of our wireless customers are under continuous pressure to reduce
costs and, therefore, we expect to continue to experience pressure from these
customers to reduce the prices of the products that we sell to them. Our
customers frequently negotiate supply arrangements well in advance of delivery
dates, requiring us to commit to price reductions before we can determine
whether the assumed cost reductions or the negotiated supply volumes can be
achieved. To offset declining average sales prices, we believe that we must
achieve manufacturing cost reductions and increase our sales volumes. If we are
unable to offset declining average selling prices, our gross margins will
decline, and this decline could materially harm our business, financial
condition and operating results.
If we are unable to meet the rapid technological changes in the wireless and
satellite communications markets, our existing products could become obsolete.
The markets in which we compete are characterized by rapidly changing
technologies, evolving industry standards and frequent improvements in products
and services. If technologies supported by our products become obsolete or fail
to gain widespread acceptance, as a result of a change in the industry standards
or otherwise, our business could be harmed. Our future success will depend in
part on factors including:
o our ability to enhance the functionality of our existing products in
a timely and cost-effective manner;
o our ability to establish close working relationships with major
customers for the design of their new wireless transmission systems
that incorporate our products.
o our ability to identify, develop and achieve market acceptance of
new products that address new technologies and meet customer needs
in wireless communications markets;
o our ability to continue to apply our expertise and technologies to
existing and emerging wireless and satellite communications markets;
and
o our ability to achieve acceptable product costs on new products.
We must continue to make significant investments in research and
development efforts in order to develop necessary product enhancements, new
designs and technologies. We may not be able to obtain the funds necessary for
these investments when needed, our research and development efforts may not be
successful, and our new products may
7
not achieve market acceptance. Wireless and satellite technologies are complex
and new products and enhancements developed by our customers can in turn require
long development periods for our new products or for enhancement or adaptation
of our existing products. If we are unable to develop and introduce new products
or enhancements in a timely manner in response to changing market conditions or
customer requirements, or if our new products do not achieve market acceptance,
our business, financial condition and operating results could suffer.
Our business could be harmed if we or our customers fail to comply with
governmental regulations.
Our products are incorporated into base stations and other wireless
communications systems that are subject to regulation domestically by the
Federal Communications Commission and internationally by other government
agencies. Although the equipment operators are generally responsible for
compliance with these regulations, regulatory changes, including changes in the
allocation of available frequency spectra, could materially restrict development
efforts by our customers. Changes in applicable governmental regulations, or our
failure to manufacture products in compliance with these regulations, could
materially harm our business, financial condition and operating results.
In addition, the increasing demand for wireless and satellite
communications has exerted pressure on regulatory bodies worldwide to adopt new
standards for these products, generally following extensive investigation of and
deliberation over competing technologies. The delays inherent in this
governmental approval process may cause our customers to cancel or postpone the
installation of communications systems, which in turn may reduce our sale of
products to these customers.
Because of our participation in the defense industry, we are subject to
broad audits by various government agencies. Responding to audits, inquiries or
investigations may involve significant expense and divert management attention.
If there is an adverse finding in any audit, inquiry or investigation, we could
be required to pay substantial fines or penalties.
Risks Relating to this Offering
Our stock price may fluctuate significantly and you may not be able to sell your
shares at or above the offering price.
The market price of our stock will fluctuate in the future. Price
fluctuations may occur in response to a variety of factors, including:
o actual or anticipated operating results;
o announcements of technological innovations, new products or new
contracts by us, our customers or our customer's competitors;
o government regulatory action;
o developments with respect to wireless and satellite communications;
and
o general market conditions.
In addition, the stock market has from time to time experienced
significant price and volume fluctuations that have particularly affected the
market prices for the stocks of technology companies and that have often been
unrelated to the operating performance of particular companies. In the period
from October 1, 2000 to November 5, 2001, the price of our common stock has
ranged from $77.00 to $10.00 per share. The market price of our common stock has
been volatile and may continue to be highly volatile.
8
Some anti-takeover provisions may affect the price of our common stock.
Our certificate of incorporation and by-laws contain provisions which may
impede any merger, consolidation, takeover or other business combination
involving us or may discourage a potential acquiror from making a tender offer
or otherwise attempting to obtain control of our company. These provisions
include:
o a classified board of directors;
o a super-majority voting requirement for removal of directors by the
shareholders;
o the ability of the board of directors to issue additional shares of
common stock without shareholder approval; and
o a requirement that the provisions of the certificate of
incorporation and by-laws designed to protect us from unfriendly
takeover attempts can only be amended by the shareholders pursuant
to a super-majority vote.
In addition, our board of directors has adopted a Shareholder Protection
Rights Plan which is designed to protect shareholders in the event of an
unsolicited offer or attempt to acquire control of the company.
These provisions are intended to avoid costly takeover battles and lessen
our vulnerability to a hostile change in control, thereby enhancing the
possibility that our board of directors can maximize shareholder value in
connection with an unsolicited offer to acquire us. However, these provisions
could also serve to depress our stock price or discourage a hostile bid in which
shareholders could receive a premium for their shares. In addition, these
provisions could make it more difficult for a third party to acquire a majority
of our outstanding voting stock or otherwise effect a change of control of
Anaren.
9
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, and Section 21E of the Securities
Exchange Act of 1934. We intend these forward-looking statements to be covered
by the safe harbor provisions for forward-looking statements contained in the
Private Securities Litigation Reform Act of 1995, and we are including this
statement for purposes of complying with these safe harbor provisions. We have
based these forward-looking statements on our current expectations and
projections about future events. These forward-looking statements are not
guarantees of future performance and are subject to risks, uncertainties and
assumptions, including those set forth under "Risk Factors." Words such as
"expect," "anticipate," "intend," "plan," "believe," "estimate" and variations
of these words and similar expressions are intended to identify these
forward-looking statements. We undertake no obligations to publicly update or
revise any forward-looking statements, whether as a result of new information,
future events or otherwise. In light of these risks, uncertainties and
assumptions, the forward-looking events discussed in this prospectus might not
occur.
USE OF PROCEEDS
We will not receive any proceeds from the sale of shares offered by the
selling shareholders.
SELLING SHAREHOLDERS
On August 31, 2001, we acquired all of the outstanding capital stock of
Amitron from the selling shareholders. As a portion of the purchase price for
the acquisition, we issued a total of 95,704 shares of our common stock to the
selling shareholders. In connection with this transaction, we agreed to file a
registration statement with the SEC to cover the resale of the shares.
The following table provides information regarding the beneficial
ownership of our common stock as of November 9, 2001 by each of the selling
shareholders. The table is based upon information supplied by the selling
shareholders. Subject to community property laws where applicable, we believe
that each of the selling shareholders named in this table has sole voting and
investment power with respect to the shares indicated as beneficially owned by
them. Percentage ownership is based on 22,432,120 shares outstanding on
November 5, 2001.
The table assumes that the selling shareholders sell all of the shares
offered under this prospectus. However, because the selling shareholders may
offer from time to time all or some of their shares under this prospectus, or in
another permitted manner, we cannot assure you as to the actual number of shares
that will be sold by the selling shareholders or that will be held by the
selling shareholders after completion of the offering.
Mr. Raymond C. Simione serves as our Vice President and President of
Amitron, and Mr. Harold J. Sparks is an employee of Amitron.
Shares Beneficially Shares Beneficially
Owned Prior to the Number of Owned After the
Offering Shares Offering
--------------------- Being ---------------------
Name of Selling Shareholders Number Percent Offered Number Percent
- ----------------------------- ------ ------- ------- ------ -------
Laurence A. Lyons................ 66,992 * 66,992 0 *
Raymond C. Simione............... 16,270 * 16,270 0 *
Harold J. Sparks................. 4,786 * 4,786 0 *
Michael J. Wanyo, Jr............. 7,656 * 7,656 0 *
- ----------
* Indicates less than 1%
10
PLAN OF DISTRIBUTION
The selling shareholders and any of their pledges, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of our common stock on any stock exchange, market or trading facility on which
the shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling shareholders may use any one or more of the
following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
o purchases by broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o broker-dealers may agree with the selling shareholders to sell a
specified number of such shares at a stipulated price per share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law.
The selling shareholders may also sell shares under Rule 144 under the
Securities Act, if available, rather than under this prospectus.
Broker-dealers engaged by the selling shareholders may arrange for other
broker-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling shareholders (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling shareholders do not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling shareholders may from time to time pledge or grant a security
interest in some or all of the shares of our common stock owned by them and, if
they default in the performance of their secured obligations, the pledgees or
secured parties may offer and sell the shares from time to time under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 amending the list of
selling shareholders to include the pledgee, transferee or other successors in
interest as selling shareholders under this prospectus.
The selling shareholders also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for the purposes of this
prospectus.
The selling shareholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. In such event, any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The selling shareholders have
informed us that they do not have any agreement or understanding, directly or
indirectly, with any person to distribute the common stock.
11
We have advised the selling shareholders that they are required to comply
with Regulation M promulgated under the Securities and Exchange Act during such
time as they may be engaged in a distribution of the shares. With some
exceptions, Regulation M precludes any selling shareholder, any affiliated
purchaser and any broker-dealer or other person who participates in such
distribution from bidding for or purchasing, or attempting to induce any person
to bid for or purchase any security that is the subject of the distribution
until the entire distribution is complete. Regulation M also prohibits any bids
or purchases made in order to stabilize the price of a security in connection
with the distribution of that security. All of the foregoing may affect the
marketability of the common stock.
The selling shareholders are not obligated to, and there is no assurance
that the selling shareholders will, sell any or all of the shares offered under
this prospectus. We will bear all costs, expenses and fees in connection with
the registration of the shares. The selling shareholders will pay all
commissions and discounts, if any, associated with the sale of the shares.
We have agreed with the selling shareholders to keep the registration
statement, of which this prospectus is a part, effective until the earlier of
the second anniversary of the initial effective date of the registration
statement, or the date on which the selling shareholders have disposed of all of
the shares offered under this prospectus, subject to certain limitations.
12
LEGAL MATTERS
The validity of the issuance of the common stock offered hereby will be
passed upon for us by Bond, Schoeneck & King, LLP, Syracuse, New York. David M.
Ferrara, Esq., a member of Bond, Schoeneck & King, LLP, serves as our General
Counsel and Secretary. In addition, certain members of that firm beneficially
own an aggregate of 9,751 shares of our common stock, including shares subject
to options exercisable within 60 days of this prospectus.
EXPERTS
Our consolidated financial statements as of June 30, 2000 and 2001, and
for each of the years in the three year period ended June 30, 2001, have been
incorporated by reference in this prospectus and in the related registration
statement in reliance upon the report of KPMG LLP, independent certified public
accountants, appearing in our Annual Report on Form 10-K for the fiscal year
ended June 30, 2001, and upon the authority of that firm as experts in
accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a reporting company and file annual, quarterly and special reports,
proxy statements and other information with the Securities and Exchange
Commission, or the SEC. You may read and copy such materials at the public
reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may also obtain copies of such material from the SEC
at prescribed rates for the cost of copying by writing to the Public Reference
Section of the SEC at the same address. You may call the SEC at 1-800-SEC-0330
for more information on the public reference rooms. You can also find our SEC
filings at the SEC's web site at www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information that 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 we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
o Annual Report on Form 10-K for the year ended June 30, 2001 filed on
September 19, 2001, as amended November 9, 2001;
o Proxy Statement on Schedule 14A for our 2001 Annual Meeting filed on
September 19, 2001;
o Current Report on Form 8-K filed on September 14, 2001; and
o The descriptions of the common stock and the associated share
purchase rights contained in our Registration Statements on Form 8-A
filed in November 1972 and on April 26, 2001.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
Anaren Microwave, Inc.
6635 Kirkville Road
East Syracuse, New York 13057
(315) 432-8909
13
================================================================================
95,704 Shares
[Anaren Logo]
----------
Prospectus
, 2001
----------
================================================================================
PART II:
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and distribution of the
securities being registered hereby, other than underwriting discounts and
commissions, are as follows:
Securities and Exchange Commission Registration Fee........... $ 403
Legal Fees*................................................... 4,000
Accounting Fees*.............................................. 12,000
Printing, Postage and Handling Expenses*...................... 5,000
Miscellaneous Expenses*....................................... 0
------
Total............................................... 21,403
- ------------
* Estimated
Item 15. Indemnification of Officers and Directors
Under the New York Business Corporation Law ("NYBCL"), a corporation may
indemnify its directors and officers made, or threatened to be made, a party to
any action or proceeding, except for stockholder derivative suits, if such
director or officer acted in good faith, for a purpose which he or she
reasonably believed to be in or, in the case of service to another corporation
or enterprise, not opposed to, the best interests of the corporation, and, in
criminal proceedings, had no reasonable cause to believe his or her conduct was
unlawful. In the case of stockholder derivative suits, the corporation may
indemnify a director or officer if he or she acted in good faith for a purpose
which he or she reasonably believed to be in or, in the case of service to
another corporation or enterprise, not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of (i) a
threatened action, or a pending action which is settled or otherwise disposed
of, or (ii) any claim, issue or matter as to which such person has been adjudged
to be liable to the corporation, unless and only to the extent that the court in
which the action was brought, or, if no action was brought, any court of
competent jurisdiction, determines upon application that, in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such portion of the settlement amount and expenses as the court
deems proper.
Any person who has been successful on the merits or otherwise in the
defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered by
a court pursuant to the NYBCL, any indemnification under the NYBCL pursuant to
the above paragraph may be made only if authorized in the specific case and
after a finding that the director or officer met the requisite standard of
conduct by (i) the disinterested directors if a quorum is available, (ii) the
board upon the written opinion of independent legal counsel or (iii) the
stockholders.
The indemnification described above under the NYBCL is not exclusive of
other indemnification rights to which a director or officer may be entitled,
whether contained in the certificate of incorporation or bylaws or when
authorized by (i) such certificate of incorporation or bylaws; (ii) a resolution
of stockholders, (iii) a resolution of directors or (iv) an agreement providing
for such indemnification, provided that no indemnification may be made to or on
behalf of any director or officer if a judgment or other final adjudication
adverse to the director or officer establishes that his or her acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action so adjudicated, or that he or she
personally gained in fact a financial profit or other advantage to which he or
she was not legally entitled.
II-1
The foregoing statement is qualified in its entirety by reference to
Sections 715, 717 and 721 through 725 of the NYBCL.
The By-laws of the Registrant provide that the Registrant shall indemnify
any officer or director who is made or is threatened to be made a party to an
action by or in right of the Registrant to procure a judgment in its favor by
reason of the fact that he, his testator or intestate, is or was a director or
officer of the Registrant or is or was serving at the request of the Registrant
as a director or officer of any other corporation of any type or kind, domestic
or foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise against amounts paid in settlement and reasonable expenses,
including attorneys' fees, actually and necessarily incurred by him, in
connection with the defense or settlement of such action, or in connection with
an appeal therein, if such director or officer acted in good faith for a purpose
which he reasonably expected to be in or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise, not opposed to the best interests of the Registrant, except
that no indemnification shall be made in respect to (1) a threatened action, or
a pending action which is settled or otherwise disposed of, or (2) any claim,
issue or matter as to which such person shall have been adjudged to be liable to
the Registrant; unless and only to the extent that the court in which the action
was brought, or if no action was brought, any court of competent jurisdiction,
determines upon application that, in view of the circumstances of the case, the
person is fairly and reasonably entitled to indemnity for such portion of the
settlement amount and expenses as the court deems proper.
Item 16. Exhibits
The following exhibits are filed as part of this Registration Statement:
Exhibit
Number Description of Exhibit
------ ----------------------------------------------------
4.1 Specimen Certificate of Common Stock**
5.1 Opinion of Bond, Schoeneck & King, LLP**
23.1 Consent of KPMG LLP*
23.2 Consent of Bond, Schoeneck & King, LLP (included in
Exhibit 5.1)**
24.1 Power of Attorney**
- ------------
* Filed herewith.
** Previously filed.
Item 17. Undertakings
(a) 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(b) 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 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
II-2
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.
(c) 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;
(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 clauses (i) and (ii) do not apply if
the Registration Statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a
post-effective amendment by such clauses is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus 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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment to be signed on its behalf by the undersigned thereunto
duly authorized, in East Syracuse, New York on this 9th day of November, 2001.
ANAREN MICROWAVE, INC.
By: /s/ LAWRENCE A. SALA
--------------------------------------------
Name: Lawrence A. Sala
Title: President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
Signature Title Date
--------- ----- ----
/s/ LAWRENCE A. SALA President, Chief November 9, 2001
- --------------------------- Executive Officer and
Lawrence A. Sala Chairman of the Board
(Principal Executive
Officer)
/s/ CARL W. GERST, JR.* Chief Technical Officer, November 9, 2001
- --------------------------- Treasurer and Vice Chairman
Carl W. Gerst, Jr.
/s/ HUGH A. HAIR* Director November 9, 2001
- ---------------------------
Hugh A. Hair
/s/ JOSEPH E. PORCELLO* Vice President, Finance November 9, 2001
- --------------------------- (Principal Financial Officer
Joseph E. Porcello and Principal Accounting
Officer)
/s/ HERBERT I. CORKIN* Director November 9, 2001
- ---------------------------
Herbert I. Corkin
/s/ DALE F. ECK* Director November 9, 2001
- ---------------------------
Dale F. Eck
II-4
Signature Title Date
--------- ----- ----
/s/ DAVID WILEMON* Director November 9, 2001
- --------------------------
David Wilemon
/s/ MATTHEW ROBISON* Director November 9, 2001
- --------------------------
Matthew Robison
* By: /s/ LAWRENCE A. SALA
-------------------------
Lawrence A. Sala
Attorney-in-Fact
II-5
Exhibit Index
Exhibit
Number Description of Exhibit
------ ----------------------
4.1 Specimen Certificate of Common Stock**
5.1 Opinion of Bond, Schoeneck & King, LLP**
23.1 Consent of KPMG LLP*
23.2 Consent of Bond, Schoeneck & King, LLP (included in
Exhibit 5.1)**
24.1 Power of Attorney**
- ------------
* Filed herewith.
** Previously filed.