As filed with the Securities and Exchange Commission on December 10, 2001
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VIRCO MFG. CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 95-1613718
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2027 HARPERS WAY 90501
TORRANCE, CALIFORNIA (Zip Code)
(Address of Principal Executive
Offices)
VIRCO MFG. CORPORATION 401(k) SAVINGS PLAN
(Full Title of the Plan)
ROBERT A. VIRTUE
CHIEF EXECUTIVE OFFICER
VIRCO MFG. CORPORATION
2027 HARPERS WAY
TORRANCE, CALIFORNIA 90501
(310) 533-0474
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
ROBERT K. MONTGOMERY, ESQ.
GIBSON, DUNN & CRUTCHER LLP
2029 CENTURY PARK EAST, SUITE 4000
LOS ANGELES, CALIFORNIA 90067-3026
(310) 552-8500
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) FEE
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Common Stock, par value
$.01 per share........ 1,000,000 $8.25 $8,250,000 $1,972
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Interests in Virco Mfg.
Corporation Employee
Stock Ownership Plan..... (3) (3) (3) (3)
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(1) All of the 1,000,000 shares of Common Stock being registered hereunder are
reserved for issuance pursuant to the Virco Mfg. Corporation 401(k) Savings
Plan (the "Plan"). Pursuant to Rule 416, there also is being registered
such number of additional shares of Common Stock which may become available
for issuance pursuant to the foregoing Plan in the event of certain changes
in outstanding shares, including reorganizations, recapitalizations, stock
splits, stock dividends and reverse stock splits.
(2) Estimated solely for the purpose of calculating the registration fee. The
registration fee has been calculated in accordance with Rule 457(h) under
the Securities Act of 1933 based upon the average price of the Common Stock
on December 3, 2001, which was $8.25.
(3) An indeterminate amount of Interests in the Plan is being registered
pursuant to Rule 416(c) under the Securities Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) The Registrant's latest annual report or latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended
(the "Securities Act"), that contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been
filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since
the end of the fiscal year covered by Registrant's prospectus referred
to in (1) above;
(3) The description of the Common Stock set forth under the caption
"Description of Capital Stock" in the Registrant's registration
statement on Form 8-B, filed with the Commission on August 14, 1984,
File No. 00108777, together with any amendment or report filed with the
Commission for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
reports and documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
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not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers, directors and employees of a
corporation under certain conditions and subject to certain limitations. The
Registrant's Bylaws provide that the Registrant shall 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, by reason of the fact that he is a director, officer, employee
or agent of the Registrant or is or was serving at the request of the Registrant
(including in connection with an employee benefit plan) as a director, officer,
employee or agent of another corporation or enterprise. Depending upon the
character of the proceeding, under Delaware law and pursuant to the Registrant's
Bylaws, the Registrant may indemnify against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding (and, under certain
circumstances, make advances for such expenses) if the Board of Directors
determines that the person indemnified acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interest of the
Registrant, and, with respect to any criminal action or proceeding, had no cause
to believe his or her conduct was unlawful. To the extent that a director or
officer of the Registrant has been successful in the defense of any action, suit
or proceeding referred to above, the Registrant would have the right to
indemnify him or her against expenses (including attorneys' fees) actually and
reasonably incurred in connection therewith.
Under Section 102(b)(7) of the DGCL, a corporation may relieve its
directors from personal liability to such corporation or its stockholders for
monetary damages for any breach of fiduciary duty as directors except (i) for a
breach of the duty of loyalty, (ii) for failure to act in good faith, (iii) for
intentional misconduct or knowing violation of law, (iv) for willful or
negligent violations of certain provisions in the DGCL imposing certain
requirements with respect to stock repurchases, redemptions and dividends, or
(v) for any transactions from which the director derived an improper personal
benefit. Article XIX of the Registrant's Certificate of Incorporation provides
that, to the fullest extent permitted by the DGCL, a director of the Registrant
shall not be liable to the Registrant or its stockholders for monetary damages
for breach of fiduciary duty as director.
The Registrant also maintains a liability insurance policy that insures
directors and officers against certain liabilities incurred by them in their
capacities as such, or arising out of their status as such.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index appears on page II-7.
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 the
registration statement (or the most recent
post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
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.
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(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Registration Statement to be signed
on its behalf by the undersigned, there-unto duly authorized, in the City of
Torrance, State of California, on this 7th day of December, 2001.
VIRCO MFG. CORPORATION
By: /s/
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Robert A. Virtue
Chief Executive Officer and
Chairman of the Board of Directors
Each person whose signature appears below constitutes and appoints Robert A.
Virtue and Robert E. Dose, and each of them, his true and lawful
attorney-in-fact, each with full power of substitution and resubstitution,
severally, for him and 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 to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, 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/ Chief Executive Officer and December 7, 2001
- ---------------------------------- Chairman of the Board of Directors
Robert A. Virtue (Principal Executive Officer)
/s/ Vice President -- Finance, December 7, 2001
- ---------------------------------- Secretary and Treasurer
Robert E. Dose (Principal Financial Officer)
/s/ Corporate Controller December 7, 2001
- ---------------------------------- (Principal Accounting Officer)
Bassey Yau
Director December 7, 2001
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Donald S. Friesz
/s/ Director December 7, 2001
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Robert K. Montgomery
II-5
/s/ Director December 7, 2001
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George W. Ott
/s/ Director December 7, 2001
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Glen D. Parish
Director December 7, 2001
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Donald A. Patrick
Director December 7, 2001
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John H. Stafford
Director December 7, 2001
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Douglas A. Virtue
/s/ Director December 7, 2001
- ----------------------------------
James R. Wilburn
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Torrance, State of
California, on the 7th day of December, 2001.
VIRCO MFG. CORPORATION
401(K) SAVINGS PLAN
By: /s/
----------------------
Robert A. Virtue
Plan Administrator
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
5 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on the signature pages of this Registration
Statement).
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