As filed with the Securities and Exchange Commission on December 20, 2004. File
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
YDI Wireless, Inc.
(Exact name of registrant as specified in its charter)
_____________________
DELAWARE 04-2751645
(State or other jurisdiction of (I.R.S Employer Identification Number)
incorporation or organization)
_____________________
8000 Lee Highway
Falls Church, VA 22042
(Address of Principal Executive Offices)
_____________________
2004 STOCK PLAN
(Full title of the plan)
_____________________
DAVID L. RENAULD
Vice President, Legal and Corporate Affairs
YDI WIRELESS, INC.
20 Industrial Drive East
South Deerfield, MA 01373
(Name and address of agent for service)
(413) 665-8551
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed maximum Proposed
Title of securities Amount to offering price per maximum aggregate Amount of
to be registered be registered(1) share offering price registration fee
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common stock, $.01 par value 528,750 (2) $2.49 (3) $1,318,625 (3) $155
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common stock, $.01 par value 621,250 (4) $2.32 (5) $1,438,194 (5) $169
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(1) Pursuant to Rule 416, this Registration Statement also relates to such
indeterminate number of additional shares as may be necessary to satisfy
the antidilution provisions of the 2004 Stock Plan (the "Plan") to which
this Registration Statement relates.
(2) Represents all shares reserved for issuance pursuant to awards under the
Plan which are currently outstanding.
(3) The proposed maximum offering price per share of common stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rule 457(h)(1)
under the Securities Act of 1933, based on the weighted average exercise
price per share of the awards outstanding under the Plan.
(4) Represents all shares reserved for issuance pursuant to awards available
for grant under the Plan.
(5) The proposed maximum offering price per share of common stock and the
proposed maximum aggregate offering price are calculated solely for the
purpose of determining the registration fee pursuant to Rules 457(c) and
(h)(1) under the Securities Act of 1933, based on the average of the high
and low sale prices of the common stock as reported on the Nasdaq SmallCap
Market on December 14, 2004.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which we filed with the Securities and Exchange
Commission, are incorporated by reference in this registration statement:
(a) our annual report on Form 10-K for the fiscal year ended December 31,
2003 filed on February 20, 2004, as amended by our amended annual report on Form
10-K/A filed on March 25, 2004;
(b) our amended quarterly report on Form 10-Q/A for the fiscal quarter
ended June 30, 2003 filed on March 25, 2004;
(c) our amended quarterly report on Form 10-Q/A for the fiscal quarter
ended September 30, 2003 filed on March 25, 2004;
(d) our current report on Form 8-K filed on April 6, 2004;
(e) our current report on Form 8-K filed on April 16, 2004;
(f) our quarterly report on Form 10-Q for the fiscal quarter ended March
31, 2004 filed on May 14, 2004;
(g) our current report on Form 8-K filed on May 20, 2004;
(h) our current report on Form 8-K filed on June 7, 2004;
(i) our current report on Form 8-K filed on June 29, 2004;
(j) our amended current report on Form 8-K/A filed on July 27, 2004;
(k) our quarterly report on Form 10-Q for the fiscal quarter ended June 30,
2004 filed on August 16, 2004;
(l) our amended current report on Form 8-K/A filed on September 7, 2004;
(m) our current report on Form 8-K filed on September 15, 2004;
(n) our current report on Form 8-K filed on September 21, 2004;
(o) our current report on Form 8-K filed on October 5, 2004;
(p) our current report on Form 8-K filed on November 3, 2004;
(q) our quarterly report on Form 10-Q for the fiscal quarter ended
September 30, 2004 filed on November 15, 2004;
(r) our current report on Form 8-K filed on November 19, 2004; and
(s) the description of our common stock contained in our registration
statement on Form S-1 (File No. 333-87885) in the form declared effective by the
Securities and Exchange Commission on February 1, 2000, including the
information in our current reports on Form 8-K filed on May 21, 2001, May 15,
2003, and July 16, 2003 for the purpose of updating that description.
In addition, all documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14, or 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 have been sold or which deregisters all securities then
remaining unsold, are deemed to be incorporated by reference into, and to be a
part of, this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities we are registering is being passed upon by
Foley Hoag LLP, Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by such section.
Our by-laws provide for the indemnification of our directors and officers
to the fullest extent permissible under Delaware law. Our by-laws also mandate
advancement of indemnifiable expenses for our directors and officers upon
receipt of an undertaking from the affected director or officer to repay all
amounts of advanced expenses if the director or officer is ultimately determined
not to be entitled to indemnification for those expenses.
Our by-laws also provide that the board of directors has the power on our
behalf to indemnify our employees and other agents and to pay their expenses in
advance of final disposition of any proceeding.
We have entered into indemnification agreements with most of our directors
and executive officers and intend to enter into indemnification agreements with
our other directors and any new directors and executive officers in the future.
Section 102(b)(7) of the Delaware General Corporation Law gives a Delaware
corporation the power to adopt a provision in its certificate of incorporation
eliminating or limiting the personal liability of directors to the corporation
or its stockholders for breach of fiduciary duty as directors, but the provision
may not eliminate or limit the liability of directors for:
o any breach of the director's duty of loyalty to the corporation or its
stockholders;
o any acts or omissions not in good faith or that involves intentional
misconduct or a knowing violation of law;
o any payment of a dividend or approval of a stock purchase that is
illegal under Section 174 of the Delaware General Corporation Law; or
o any transaction from which the director derived an improper personal
benefit.
Article SEVENTH of our certificate of incorporation limits our directors'
liability to the maximum extent permitted by the Delaware General Corporation
Law. No amendment to or repeal of the provisions of Article SEVENTH shall apply
to or have any effect on the liability or the alleged liability of any director
with respect to any act or failure to act of such director occurring prior to
such amendment or repeal. A principal effect of Article SEVENTH is to limit or
eliminate the potential liability of our directors for monetary damages arising
from breaches of their duty of care, unless the breach involves one of the four
exceptions described above. Article SEVENTH does not prevent stockholders from
obtaining injunctive or other equitable relief against directors.
Section 145 of the Delaware General Corporation Law also affords a Delaware
corporation the power to obtain insurance on behalf of its directors and
officers against liabilities incurred by them in those capacities. We have
directors' and officers' liability insurance that covers matters, including
matters arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (l)(i) and (l)(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 pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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 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, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Falls Church, Commonwealth of Virginia on December
20, 2004.
YDI Wireless, Inc.
By: /s/ Robert E. Fitzgerald
------------------------
Robert E. Fitzgerald, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below hereby constitutes and appoints Robert E. Fitzgerald and Patrick L.
Milton, and each of them, his or her true and lawful attorneys-in-fact and
agents with full power of substitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to
file the same, with all exhibits thereto, and all 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 which they, or any of them, may deem
necessary or advisable to be done in connection with this registration
statement, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or any substitute or substitutes for him, any or all of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Robert E. Fitzgerald Chief Executive Officer and Director December 20, 2004
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Robert E. Fitzgerald (principal executive officer)
/s/ Patrick L. Milton Chief Financial Officer, Treasurer, and December 20, 2004
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Patrick L. Milton Director (principal financial and
accounting officer)
/s/ Daniel A. Saginario Chairman of the Board of Directors December 20, 2004
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Daniel A. Saginario
/s/ John W. Gerdelman Director December 20, 2004
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John W. Gerdelman
/s/ Daniel R. Hesse Director December 20, 2004
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Daniel R. Hesse
/s/ Gary E. Rieschel Director December 20, 2004
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Gary E. Rieschel
/s/ Robert A. Wiedemer Director December 20, 2004
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Robert A. Wiedemer
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 Certificate of Incorporation of the Registrant as filed with the
Delaware Secretary of State on May 5, 2003 (incorporated by
reference to Exhibit 3.1 to the Registrant's Form 10-Q filed with
the Securities and Exchange Commission on August 14, 2003)
4.2 Certificate of Merger of Telaxis Communications Corporation with
and into YDI Wireless, Inc. as filed with the Delaware Secretary
of State on July 7, 2003 (incorporated by reference to Exhibit
3.2 to the Registrant's Form 10-Q filed with the Securities and
Exchange Commission on August 14, 2003)
4.3 By-laws of the Registrant (incorporated by reference to Exhibit
3.3 to the Registrant's Form 10-Q filed with the Securities and
Exchange Commission on August 14, 2003)
5.1 Opinion of Foley Hoag LLP
23.1 Consent of Fitzgerald, Snyder & Co., P.C., Independent
Accountants
23.2 Consent of BDO Seidman, LLP, Independent Accountants
23.3 Consent of Hausser + Taylor, LLC, Independent Accountants
23.4 Consent of KPMG LLP, Independent Auditors
23.5 Consent of Foley Hoag LLP (included in Exhibit 5.1)
24 Power of Attorney (included on signature page)
99.1 YDI Wireless, Inc. 2004 Stock Plan (incorporated by reference to
Exhibit 10.1 to the Registrant's Form 8-K filed with the
Securities and Exchange Commission on September 15, 2004)