1 AS FILED WITH THEAs filed with the Securities and Exchange Commission on June 18, 2015
Registration No.333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
ON APRIL 14, 1998 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON,Washington, D.C. 20549
----------FORMS-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
GIGA-TRONICS INCORPORATED (Exact
Giga-tronics Incorporated
(Exact Name of Registrant as Specified in its Charter)
California
(State or Other Jurisdiction of Incorporation or Organization)
94-2656341
(I.R.S. Employer Identification Number)
4650 Norris Canyon Road
San Ramon, CA 94583
(925) 328-4650
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
John R. Regazzi
Chief Executive Officer Giga-tronics Incorporated 4650 Norris Canyon Road San Ramon, CA 94583 (925)328-4650 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With Copies to:
Thomas G. Reddy
Sheppard Mullin Richter & Hampton LLP
Four Embarcadero Center #1700
San Francisco, California 94111
(415) 434-9100
Fax (415) 403-6050
Approximate date of
Registrant as Specified in Its Charter) CALIFORNIA 94-2656341 (Statecommencement ofIncorporation) (I.R.S. Employer Identification No.) 4650 NORRIS CANYON ROAD SAN RAMON, CALIFORNIA 94583 (510) 328-4650 (Address, Including Zip Code, and Telephone Number, Including Area Code,proposed sale to the public: From time to time after the effective date ofRegistrant's Principal Executive Offices) ---------- GEORGE H. BRUNS, JR. CHAIRMAN AND CHIEF EXECUTIVE OFFICER GIGA-TRONICS INCORPORATED 4650 NORRIS CANYON ROAD, SAN RAMON, CALIFORNIA 94583 (510) 328-4650 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service) COPY TO: WILLIAM L. HUDSON, ESQ. GIBSON, DUNN & CRUTCHER LLP ONE MONTGOMERY STREET, TELESIS TOWER SAN FRANCISCO, CALIFORNIA 94104 (415) 393-8200 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.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.
[ ]☐-1-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 ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with theprospectus is expected to be madeCommission pursuant to Rule434, please462(e) under the Securities Act, check the following box.[ ] CALCULATION OF REGISTRATION FEE
============================================================================================================= Proposed Maximum Proposed Maximum Amount of Title of Shares to be Registered Amount to be Offering Price Per Aggregate Registration Registered Security Offering Price Fee(1) - -------------------------------------------------------------------------------------------------------------Common Stock, no par value per share 936,989 $6.625 $6,207,552.12 $1,831.23 =============================================================================================================(1) Estimated solely for purposes☐If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of
calculating the registration feesecurities pursuant to Rule457(c)413(b) under the Securities Act, check the following box. ☐Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of
1933, as amended, on the basis“large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (Check one):
Large accelerated filer ☐
Accelerated filer ☐
Non-accelerated filer ☐
Smaller reporting company ☒
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
Title of each class of
securities to be registeredAmount
to be Registered
Proposed maximum
offering price per unit (1)Proposed Maximum
Aggregate Offering
Price(1)Amount of
Registration FeeCommon Stock, no par value(2)
3,956,456 $1.845 $7,299,661.32 $848.22
(1)
Estimated solely for the purpose of calculating the registration fee and based on the average of the high and low sales prices of our Common Stock of $1.88 on June 15, 2015 on the Nasdaq Capital Market pursuant to Rule 457(c) under the Securities Act of 1933, as amended.
(2)
Includes shares preferred stock purchase rights attached to each share of common stock under a Rights Agreement between the issuer and American Stock Transfer & Trust Company, LLC dated as of January 23, 2013, as amended to date.
TheRegistranthereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until theRegistrantshall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the
highSecurities Act of 1933or until theRegistration Statementshall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.-2-The information in this prospectus is not complete and
lowmay be changed. The sellingprices per share of Common Stock of Giga-tronics Incorporated on April 9, 1998, as reported on the Nasdaq National Market. 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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(a), MAY DETERMINE. ================================================================================2 Information contained herein is subject to completion or amendment. A registration statement relating toshareholder may not sell these securitieshas been filed withuntil the Securities and ExchangeCommission. These securities may not be sold nor may offers to buy be accepted prior to the time theCommission declares our registration statementbecomeseffective. ThisProspectus shallprospectus is notconstitutean offer to sellor the solicitation ofthese securities and is not soliciting an offer to buynor shall there be any sale ofthese securities in anyState in which suchstate where the offersolicitationor salewould be unlawful prior to registration or qualification under the securities laws of any such State. PROSPECTUSis not permitted.SUBJECT TO COMPLETION,
April 14, 1998DATED June18, 2015PRELIMINARY PROSPECTUS
GIGA-TRONICS INCORPORATED
936,9893,956,456 SHARESOF COMMON STOCK
--------------- AllThis prospectus relates to the potential resale from time to time of
the 936,989 shares (the "Common Shares") of Giga-tronics Incorporated ("Giga-tronics" or the "Company")our common stockno par value per share (the "Common Stock"), offered hereby are being soldbythe holders of the Common Shares named herein under "Selling Shareholders" (the "Selling Shareholders"Alara Capital AVI II, LLC (“Alara”). The prospectus relates to 1,010,034 shares of common stock currently held by Alara and 2,946,422 shares of common stock that Alara has the right to acquire, consisting of 999,700 shares issuable upon conversion of 9,997 outstandingCommonshares of our Series B Convertible Voting Perpetual Preferred Stock (“Series B Preferred Stock”), 342,465 shares issuable upon conversion of 3,424.65 outstanding shares of Series C Convertible Voting Perpetual Preferred Stock (“Series C Preferred Stock”), 511,186 shares issuable upon conversion of 5,111.86 shares of our Series D Convertible Voting Perpetual Preferred Stock (“Series D Preferred Stock”) and 1,093,071 shares issuable upon theCompany is quotedexercise of warrants. Alara acquired the 1,010,034 shares of common stock currently held by it through the exercise of warrants on February 16, 2015, February 23, 2015 and May 14, 2015. The exercised warrants were previously issued to Alara in three private placements completed on November 10, 2011, February 25, 2013 and July 8, 2013. Alara acquired theNasdaq National Market underpreferred shares in three private placements completed on November 10, 2011, February 25, 2013 and July 8, 2013, respectively. Alara acquired warrants to purchase 1,093,071 shares of common stock which have not yet been exercised by it in two private placements completed on February 16, 2015 and February 23, 2015.We refer to shares of our common stock as the
symbol "GIGA." On April 9, 1998,“commons shares” and shares of our preferred stock as “preferred shares,” regardless whether such shares are Series B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock.The preferred shares are convertible into common shares and the
last reported sale price ofunexercised warrants are exercisable for common shares by Alara at any time. Alara and its successors, including transferees, which we collectively refer to as theCommon Stock on“selling shareholder,” may offer theNasdaq National Market was $6.50 per share. The Companysecurities from time to time directly or through underwriters, broker-dealers or agents and in one or more public or private transactions and at fixed prices, prevailing market prices, at prices related to prevailing market prices or at negotiated prices. If these securities are sold through underwriters, broker-dealers or agents, the selling shareholder will be responsible for underwriting discounts or commissions or agents’ commissions.We will not receive any
of theproceeds from the sale of theCommon Shares. Any or all of such Common Shares covered by this Prospectus may be sold, from time to time, at market prices prevailing on Nasdaq at the time of sale by means of ordinary brokerage transactions or otherwise under other terms. See "Plan of Distribution." The Common Shares offered hereby were originally issuedcommon shares by theCompany in connection with its acquisitions of Viking Semiconductor Equipment, Inc. ("Viking") and Ultracision, Inc. ("Ultracision"). Common Shares were issued to former Viking shareholders pursuant to an Agreement and Plan of Reorganization (the "Viking Merger Agreement"), pursuant to which Giga-tronics acquired allselling shareholder. The registration of theoutstanding capital stock of Viking and Viking became a wholly-owned subsidiarycommon shares does not necessarily mean that the selling shareholder will sell any of theCompany. Additional Common Shares were issued bycommon shares. The timing and amount of any sale are within theCompany pursuant to an Agreement and Plan of Reorganization (the "Ultracision Merger Agreement"), pursuant to which the Company acquired all of the outstanding capital stock of Ultracision and Ultracision became a wholly-owned subsidiary of the Company. The Common Shares represent approximately 21.7% of the Company's outstanding Common Stock as of the date of this Prospectus. See "Selling Shareholders." SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK OFFERED HEREBY. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. -------------------- The date of this Prospectus is __________ ___, 19983 AVAILABLE INFORMATION The Company isselling shareholder’s sole discretion, subject tothe informational requirementscertain restrictions. See “Plan ofthe Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy and information statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy and information statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, DC 20549 and at its regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies of such materials can be obtained from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, DC 20549, and its public reference facilities in New York, New York and Chicago, Illinois on payment of prescribed charges. In addition, the CompanyDistribution.”Our common stock is
required to file electronic versions of these documents with the Commission through the Commission's Electronic Data Gathering, Analysis and Retrieval ("EDGAR") system. The Commission maintains a World Wide Web site at http://www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that file electronically via EDGAR with the Commission. The Company's Common Stock is quotedtraded on the NasdaqNationalCapital Marketand such reports, proxy and information statements and other information concerning the Company can also be inspected at the offices of The Nasdaq Stock Market, Inc., 1735 K Street, N.W., Washington, DC 20006. The Company has filed with the Commission a registration statement on Form S-3 (the "Registration Statement")under theSecurities Act, with respectsymbol “GIGA.” On June 17, 2015, the closing price of our common stock on Nasdaq was $1.82 per share. You are urged tothe shares of Common Stock offered hereby. This Prospectus does not contain all the information set forth in the Registration Statement, certain parts of which have been omitted in accordance with the rules and regulationsobtain current market quotations of theCommission, and the exhibits relating thereto, which have been filed with the Commission. Copiescommon stock.Investing inoursecurities involves a high degree of
the Registration Statement and the exhibits arerisk. See “Risk Factors ” beginning onfile at the offices of the Commission and may be obtained upon payment of the fees prescribed by the Commission, or examined without charge at the public reference facilities of the Commission described above. No person is authorized in connection with the offering made hereby to give any information or to make any representation not contained or incorporated by reference in this Prospectus, and any information or representation not contained or incorporated herein must not be relied upon as having been authorized by the Company, the Selling Shareholders set forth under "Selling Shareholders" or any underwriter. This Prospectus relates solely to the Common Stock offered hereby and it may not be used or relied on in connection with any other offer or sale of securities of the Company. This Prospectus does not constitute an offer to sell or a solicitation of any offer to buy by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation. Neither the delivery of this Prospectus at any time nor any sale made hereunder shall under any circumstance imply that the information herein is correct as of any date subsequent to the date hereof. 2. 4 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents previously or simultaneously filed with the Commission by the Company are incorporated herein by reference and made a part hereof: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended March 29, 1997; (b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended June 28, 1997, September 27, 1997 and December 27, 1997; (c) The Registrant's Current Report on Form 8-K dated December 2, 1997 (as amended by the Form 8-K/A filed with the Commission on February 17, 1998); and (d) The Registrant's Registration Statement No. 0-12719 on Form 8-A filed with the Commission on July 27, 1984, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock. All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act") after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which is deemed to be incorporated by reference herein modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will provide without charge to each person to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any or all of the documents that have been incorporated by reference in this Prospectus, other than exhibits to such documents. Such documents may be obtained by writing to Giga-tronics Incorporated, 4650 Norris Canyon Road, San Ramon, California 94583, Attention: Corporate Secretary, or by calling (510) 328-4650. 35 THE COMPANY Giga-tronics designs, manufactures, and markets microwave and radio frequency signal generation and power measurement instruments, switching devices and semiconductor inspection equipment. These products are used in the development, test and maintenance of wireless communications products and systems, electronic defense systems, automatic testing systems (ATE) and testing and manufacturing of semiconductor devices. Giga-tronics has approximately 230 employees and operates out of facilities located in San Ramon, California, Fremont, California, and Santa Clara, California. Giga-tronics receives a mixture of commercial and government-related orders from both domestic and international customers. Giga-tronics was incorporated in 1980, and itspage 8Our principal executive offices are located at 4650 Norris Canyon Road, San Ramon, California, 94583, and our telephone
number: (510)number is (925) 328-4650.MATERIAL CHANGE On December 24, 1997,Our Internet address is http://www.gigatronics.com.Neither theSecurities and Exchange Commissionnor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2015.
-3-
ABOUT THIS PROSPECTUS
SUMMARY
RISK FACTORS
FORWARD-LOOKING STATEMENTS
DESCRIPTION OF CAPITAL STOCK
USE OF PROCEEDS
PLAN OF DISTRIBUTION
SELLING SHAREHOLDER
LEGAL MATTERS
EXPERTS
WHERE YOU CAN FIND MORE INFORMATION
-4-ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, the selling shareholder may, from time to time, offer and sell, in one or more offerings, the securities described in this prospectus.
We may provide a prospectus supplement containing specific information about the terms of a particular offering by the selling shareholder. The prospectus supplement may add, update or change information in this prospectus. If the information in this prospectus is inconsistent with a prospectus supplement, you should rely on the information in that prospectus supplement. You should read both this prospectus and, if applicable, any prospectus supplement. See “Where You Can Find More Information” for more information.
Whenever we refer to the “Company,” “we,” “our” or “us” in this prospectus, we mean Giga-tronics
announced that it had reached agreementIncorporated and its consolidated subsidiaries, unless the context suggests otherwise. When we refer toacquire“you” or “yours,” we mean investors considering a purchase of the securities.SUMMARY
TheCompany
Giga-tronics Incorporated includes the operations of the Giga-tronics Division and Microsource Inc.
("Microsource") and on March 23, 1998, Giga-tronics announced the restructured terms(Microsource), a wholly owned subsidiary of theacquisition. In connection withCompany. The Giga-tronics Division designs, manufactures and markets a broad line of test and measurement equipment used in theacquisition,development, test and maintenance of wireless communications products and systems, flight navigational equipment, electronic defense systems and automatic testing systems. These products are used primarily in theCompany will pay to the Microsource shareholders $1,500,000 plus contingent payments based on the future earningsdesign, production, repair and maintenance ofMicrosource for the next two years. Microsource will become a wholly-owned subsidiary of Giga-tronics. The acquisition will be accounted for using the purchase method of accountingcommercial telecommunications, radar, andis subject to approval by Microsource's shareholders and other conditions.electronic warfare equipment.Microsource develops and manufactures a broad line of YIG (Yttrium, Iron, Garnet) tuned oscillators, filters and microwave
synthesizers. 46 RISK FACTORS Statements madesynthesizers, which are used by its customers inthis Prospectusoperational applications and in manufacturing a wide variety of microwave instruments and devices.Giga-tronics was incorporated in the State of California on March 5, 1980. Our principal executive offices are located at 4650 Norris Canyon Road, San Ramon, California 94583, and our telephone number at that location is (925) 328-4650. Our website address is http://www.gigatronics.com.
Sales of Preferred Stock
Series B Preferred Stock
On November 10, 2011, we sold 9,997 shares of our Series B Preferred Stock to Alara for $2,199,000 in cash pursuant to a Securities Purchase Agreement entered into on October 31, 2011. The Series B Preferred Stock was priced at $220 per share. Each share of Series B Preferred Stock is convertible at the option of the holder into 100 shares of our common stock, subject to customary adjustments for stock splits, stock dividends, recapitalizations and similar transactions.
The Company also issued to Alara a Warrant to purchase up to 848,684 additional shares of common stock of the Company for $3.30 per share. As discussed below, the Warrant was modified on February 25, 2013 to reduce the number of shares exercisable under the Warrant to 506,219, and was further modified again on July 8, 2013 to reduce the exercise price to $1.43 per share and extend the expiration date from August 7, 2014 to August 7, 2015.
Series C Preferred Stock
On February 25, 2013, we sold 3,424.65 shares of our Series C Preferred Stock to Alara for $500,000, or approximately $146.00 per share, pursuant to a Securities Purchase Agreement dated as of February 19, 2013. Each share of Series C Preferred Stock is convertible at the option of the holder into 100 shares of our common stock, subject to adjustments for stock splits, stock dividends, recapitalizations and similar transactions.
-5-In accordance with the terms of the Securities Purchase Agreement dated February 19, 2013, we and Alara agreed to modify the Warrant that we issued to Alara on November 10, 2011 so that it would represent the right to purchase 506,219 shares at the price of $3.30 per share, rather than 848,684 shares.
Series D Preferred Stock
On July 8, 2013, we sold Alara 5,111.86 shares of Series D Preferred Stock for approximately $817,000 pursuant to a Securities Purchase Agreement dated as of June 27, 2013. Each share of Series D Preferred Stock is convertible at the option of the holder into 100 shares of our common stock, subject to customary adjustments for stock splits, stock dividends, recapitalizations and similar transactions.
In accordance with the terms of the Securities Purchase Agreement dated June 27, 2013, we issued Alara a new warrant representing the right to acquire up to 511,186 shares of our common stock at the price of $1.43 per share, subject to adjustments for stock splits, stock dividends, reclassifications and similar events. This warrant was scheduled to expire on January 8, 2016. This warrant was exercised in February 2015 and May 2015.
Under the terms of the Securities Purchase Agreement dated June 27, 2013, the Company and Alara agreed to terminate the Investor’s right to acquire 506,219 common shares at $3.30 per share from a previously issued warrant and issue a new warrant to purchase 506,219 common shares at $1.43 per share (the “Amended Warrant”). The Amended Warrant was issued in July 2013 and was exercised in full in February 2015.
Exercise of Warrants
On February 16, 2015, Alara exercised warrants held by it to acquire 824,435 shares of our common stock, pursuant to a Securities Purchase Agreement dated February 16, 2015. On February 23, 2015, Alara exercised warrants held by it to acquire 178,383 shares of our common stock, pursuant to Amendment No. 1 to Securities Purchase Agreement and Investor Rights Agreement dated February 23, 2015. On May 14, 2015, Alara exercised the remaining 14,587 warrants in a cashless exercise resulting in Alara acquiring 7,216 of shares of our common stock. Collectively, these exercises resulted in the acquisition of 1,010,034 shares of our common stock by Alara.
In accordance with the terms of the Securities Purchase Agreement dated February 16, 2015, we issued Alara a new warrant representing the right to acquire up to 898,634 shares of our common stock at the price of $1.78 per share, subject to adjustments for stock splits, stock dividends, reclassifications and similar events. This warrant will expire on February 16, 2020. In accordance with the terms of Amendment No. 1 to Securities Purchase Agreement and Investor Rights Agreement dated February 23, 2015, we issued Alara (i) a new warrant representing the right to acquire up to 194,437 shares of our common stock at the price of $1.76 per share, subject to adjustments for stock splits, stock dividends, reclassifications and similar events, and (ii) an amended and restated warrant representing the right to acquire up to 14,587 shares of our common stock at the price of $1.43 per share, representing the unexercised portion of the warrants issued June 27, 2013. The new warrant will expire on February 23, 2020 and the amended and restated warrant was exercised on May 14, 2015.
Investor Rights Agreement
Simultaneous with each sale of securities to Alara, we entered into an Investor Rights Agreement with Alara providing Alara with certain registration rights with respect to the common shares underlying the securities. Among other things, the Investor Rights Agreement requires us to file one or more resale registration statements covering the common stock issuable upon the conversion of the Series B Preferred Stock, the Series C Preferred Stock and the Series D Stock and the exercise of the warrants. In addition, in connection with the sale of the Series B Preferred Stock, we agreed that Alara may designate two persons to serve on our board of directors.
The Offering
The selling shareholder may offer its common shares from time to time through one or more underwriters, brokers or dealers on the Nasdaq Capital Market at market prices prevailing at the time of sale, in one or more negotiated transactions acceptable to such shareholder or in private transactions. We will not receive any proceeds from the sale of the common shares offered by this prospectus.
-6-RISK FACTORS
An investment in our securities involves significant risks. You should carefully consider the risks and uncertainties and the risk factors set forth in the documents and reports filed with the SEC that are incorporated by reference into this prospectus, as well as any risks described in any applicable prospectus supplement, before you make an investment decision regarding the securities. Such risks and uncertainties include, among other things:
●
our potential inability to obtain necessary capital to finance our operations;
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market demand for and our ability to deliver our new product platform;
●
our ability to remain listed for trading on The Nasdaq Capital Market;
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U.S. and international general economic conditions;
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our ability to develop competitive products in a market with rapidly changing technology and standards;
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our dependence on the defense industry;
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risks related to the volatility of the market price of our common stock;
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changes in our credit profile;
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a decline in demand for certain of the products we manufacture;
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environmental, health and safety laws and regulations and the interpretation or implementation thereof;
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potential product liability claims against us; and
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the potential loss of key personnel.
Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business operations.
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated
hereinby referenceincludingcontain statementsas to operating results and financial performance,that areforward-looking statementsconsidered “forward looking statements” within the meaning ofSection 27AUnited States securities laws. In addition, the Company and its management may make other written or oral communications from time to time that contain forward-looking statements. Forward-looking statements, including statements about industry trends, management’s future expectations and other matters that do not relate strictly to historical facts, are based on assumptions by management, and are often identified by such forward-looking terminology as “expect,” “look,” “believe,” “anticipate,” “estimate,” “seek,” “may,” “will,” “trend,” “target,” and “goal” or similar statements or variations of such terms. Forward-looking statements may include, among other things, statements about the Company’s confidence in its strategies and its expectations about general market conditions, financial performance, market and regulatory trends and developments, acquisitions and divestitures, new technologies, services and opportunities and earnings.Forward-looking statements are subject to various risks and uncertainties, which change over time, are based on management’s expectations and assumptions at the time the statements are made, and are not guarantees of future results. Management’s expectations and assumptions, and the continued validity of the
Securities Actforward-looking statements, are subject to change due to a broad range of factors affecting the national andSection 21E ofglobal economies, theExchange Act. The Company's actualequity, debt, currency and other financial markets, as well as factors specific to us.Actual outcomes and results
couldmay differ materially fromthose anticipatedwhat is expressed insuchour forward-looking statementsas a result of certainand from our historical financial results due to the factorsincluding those set forth below, which shareholders should carefully review. All forward-looking statementsdiscussed elsewhere in thisProspectus are based on information availableprospectus or disclosed in our other SEC filings. Forward-looking statements should not be relied upon as representing our expectations or beliefs as of any date subsequent to theCompany ontime this prospectus is filed with thedate hereof and assumptions which the Company believes are reasonable, and the Company assumesSEC. We undertake no obligation toupdaterevise the forward-looking statements contained in this prospectus to reflect events after the time it is filed with the SEC. The factors discussed herein are not intended to be a complete summary of all risks and uncertainties that may affect our businesses. Though we strive to monitor and mitigate risk, we cannot anticipate all potential economic, operational and financial developments that may adversely impact our operations and our financial results.-7-Forward-looking statements should not be viewed as predictions, and should not be the primary basis upon which investors evaluate the Company. Any investor in our common stock should consider all risks and uncertainties disclosed in our SEC filings described below under the heading “Where You Can Find More Information,” all of which is accessible on the SEC’s website athttp://www.sec.gov.
-8-DESCRIPTION OF CAPITAL STOCK
General
We have 40,000,000 shares of authorized common stock, no par value, of which6,293,281 (excluding432,000 shares of unvested restricted stock) shares were outstanding as of June 16, 2015. We have 1,000,000 shares of authorized preferred stock, of which 250,000 are designated as Series A Junior Participating Preferred Stock (“Series A Preferred Stock”), none of which are outstanding; 10,000 are designated as Series B Preferred Stock of which 9,997 are outstanding; 3,500 shares of Series C Preferred Stock of which 3,424.65 are outstanding, and 6,000 shares of Series D Preferred Stock of which 5,111.86 are outstanding. Holders of our preferred stock are entitled to vote on an as-converted basis together with holders of our common stock on all matters submitted to a vote of shareholders. As of June 16, 2015, our executive officers and directors held options covering 1,136,500 shares of common stock which they had not yet exercised and 432,000 shares of unvested restricted stock. We had approximately 113 shareholders of record of our common stock at June 16, 2015.
Holders of our common stock are entitled to vote at all elections of directors and to vote or consent on all questions at the rate of one vote for each share. Shareholders may vote cumulatively in the election of directors. Under cumulative voting, every shareholder entitled to vote may give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of shares held or, the shareholder may distribute these votes on the same principle among as many candidates as the shareholder desires.
Subject to the rights, privileges, preferences, restrictions and conditions attaching to any
such forward-looking statements. The following risk factors should be considered carefully by prospective investors in evaluatingother class or series of shares of the Company,its businessholders of common stock have the right to receive any dividends we declare and pay on our common stock. They also have the right to receive our remaining assets and funds upon liquidation, dissolution or winding-up, if any, after we pay to the holders of any series of preferred stock the amounts they are entitled to, and after we pay all our debts and liabilities.Our common stock is subject and subordinate to any rights and preferences granted under our Articles of Incorporation and any rights and preferences which may be granted to any series of preferred stock by our board pursuant to the authority conferred upon our board under the Articles of Incorporation.
Subject to the participation rights of our outstanding preferred stock, our board of directors may declare dividends on our common stock out of the surplus or net profits as in their discretion may seem proper. During 2013 and 2014, we did not pay dividends on our common stock. To date, our policy has been to use our capital toward enhancement of our product position rather than paying dividends on our common stock.
The common shares offered by this prospectus and any related prospectus supplement are fully paid and non-assessable and do not have and are not subject to any preemptive or similar rights.
Our common stock is listed on the Nasdaq Capital Market under the symbol “GIGA”.
Rights Plan and Series A Junior Participating Preferred Stock
We have adopted a shareholder rights plan. Under the plan, holders of common stock will have the right to purchase shares of our Series A Preferred Stock at a discount to market value if a third party acquires, or in some cases publicly announces an
investmentintention to acquire, 20% (44% in theCommon Shares. RAPID TECHNOLOGICAL CHANGE; DEPENDENCE ON NEW PRODUCTS AND PROCESSES The marketcase of Alara or its limited partner, Spring Mountain Capital, L.P.) or more of the outstanding common stock of the Company without the prior consent of our board of directors. Prior to the acquisition by a person or group of 20% or more of the outstanding common stock, these rights are redeemable forelectronics equipment is characterized$0.001 per right at the option of our board of directors. These rights will expire on February 4, 2018.Shares of Series A Preferred Stock purchasable upon exercise of the rights will not be redeemable. Each share of Series A Preferred Stock will generally be entitled to a minimum preferential dividend payment of 100 times the dividend declared per share of common stock. In the event of liquidation, the holders of the shares of Series A Preferred Stock will be entitled to a minimum preferential liquidation payment of $100.00 per share but will be entitled to an aggregate payment of 100 times the payment made per share of common stock. Each share of Series A Preferred Stock will have 100 votes, voting together with our common stock. Finally, in the event of any merger, consolidation or other transaction in which shares of our common stock are exchanged, each share of Series A Preferred Stock will be entitled to receive 100 times the amount received per shares of common stock. These rights are protected by
rapidly changing technologycustomary anti-dilution provisions. Because of the nature of the Series A Preferred Stock’s dividend, liquidation andevolving industry standards. Giga-tronics believes that its future success will depend in part upon its ability to develop and commercialize its existing products and to develop new products and applications and in part to develop, manufacture and successfully introduce new products and product lines with improved capabilities and to continue to enhance existing products. There can be no assurance that Giga-tronics will successfully completevoting rights, thedevelopmentvalue ofcurrent or future products or that such products will achieve market acceptance. COMPETITION Giga-tronics is engagedthe one one-hundredth interest in ahighly competitive field. Competitionshare of Series A Preferred Stock purchasable upon exercise of a right should approximate the value of one share of common stock.-9-Our shareholder rights plan could make it more difficult for a third party to acquire control of the Company without the approval of the board of directors, even if our shareholders might benefit from
numerous existing companiesthe acquisition or otherwise favor the acquisition.Series B Preferred Stock
We have 9,997 shares of our Series B Preferred Stock outstanding, all held by Alara. Each share of Series B Preferred Stock is convertible at the option of the holder into 100 shares of our common stock, subject to customary adjustments for stock splits, stock dividends, recapitalizations and
potential new entrantssimilar transactions. Each share of Series B Preferred Stock has a liquidation preference of $231, which isintenseequal to 105% of the purchase price. If we paid a dividend on our common stock prior to December 31, 2013, we would have been required to pay a dividend on the Series B Preferred Stock equal to 110% andexpectedif we pay a dividend on our common stock on or after December 31, 2013, we are required toincrease. Manypay a dividend on the Series B Preferred stock equal to 100% ofthese companiesthe cash dividend that would be payable on the number of shares of common stock into which each share of Series B Preferred Stock is then convertible. The Series B Preferred Stock generally votes together with the common stock, the Series C Preferred Stock and the Series D Preferred Stock, on an as-converted basis, on each matter submitted to the vote or approval of the holders of common stock, and votes as a separate class with respect to certain actions that adversely affect the rights of the Series B Preferred Stock and on other matters as required by law.Series C Preferred Stock
We have
substantially greater research3,424.65 shares of our Series C Preferred Stock outstanding, all held by Alara. Each share of Series C Preferred Stock is convertible at the option of the holder into 100 shares of our common stock, subject to adjustments for stock splits, stock dividends, recapitalizations anddevelopment, manufacturing, marketing, financial, technological, personnelsimilar transactions. Each share of Series C Preferred Stock has a liquidation preference of approximately $146. If we paid a dividend on our common stock prior to January 1, 2014 or if we pay a dividend on our common stock on or after January 1, 2014, we are required to pay a dividend on the Series C Preferred Stock equal to 110% or 100%, respectively, of the cash dividend that would be payable on the number of shares of common stock into which each share of Series C Preferred Stock is then convertible. The Series C Preferred Stock generally votes on an as-converted basis together with our common stock, the Series B Preferred Stock andmanagerial resources than Giga-tronics. There can be no assurancethe Series D Preferred Stock on each matter submitted to the vote or approval of the holders of common stock, and would vote as a separate class with respect to certain actions thatany products developedadversely affect the rights of the Series C Preferred Stock and on other matters as required bythese competitors will not gain greater market acceptance than any developedlaw.Series D Preferred Stock
We have 5,111.86 of Series D Preferred Stock outstanding, all held by
Giga-tronics. Accordingly, Giga-tronicsAlara. Each share of Series D Preferred Stock is convertible at the option of the holder into 100 shares of our common stock subject to customary adjustments for stock splits, stock dividends, recapitalizations and similar transactions. Each share of Series D Preferred Stock has a liquidation preference of $143.00. If we paid a dividend on our common stock prior to June 1, 2014, we would have been required to pay a dividend on the Series D Preferred Stock equal to 110% and if we pay a dividend on our common stock on or after June 1, 2014, we will be required tocontinuepay a dividend on the Series D Preferred Stock equal todevote substantial resources100%, of the cash dividend that would be payable on the shares of common stock into which each share of Series D Preferred Stock is then convertible. The Series D Preferred Stock generally votes together with the common stock, the Series B Preferred Stock andeffortsthe Series C Preferred Stock on an as-converted basis, on each matter submitted tomarketingthe vote or approval of the holders of common stock, andresearchvotes as a separate class with respect to certain actions that adversely affect the rights of the Series D Preferred Stock anddevelopment activities. In addition, Giga-tronics expectson other matters as required by law.-10-Remaining Authorized Preferred Stock
The remaining 730,500 undesignated shares of preferred stock authorized under our Articles of Incorporation are typically referred to
continueas “blank check” preferred stock. This term refers tomake significant investmentsstock for which the rights and restrictions are determined by the board of directors of a corporation. Except inresearch and development. There canlimited circumstances, the Company’s Articles of Incorporation authorize the Company’s board of directors to issue new shares of common stock or preferred stock without further shareholder action. Our Articles of Incorporation give our board of directors the authority at any time to:
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divide the remaining authorized but unissued shares of preferred stock into series;
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determine the designations, number of shares, relative rights, preferences and limitations of any series of preferred stock;
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increase the number of shares of any preferred series; and
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decrease the number of shares in a preferred series, but not to a number less than the number of shares outstanding.
The issuance of additional common or preferred stock may be
no assurance that future technologies, processes or product developmentsviewed as having adverse effects upon the holders of common stock. Holders of our common stock will notrender Giga-tronics's current product offerings obsolete or that Giga-tronics will be ablehave preemptive rights with respect todevelop and introduce new products or enhancements to existing products which satisfy customer needs in a timely manner or achieve market acceptance. The failure to do soany newly issued stock. Our board of directors could adversely affectGiga-tronics's business. DECLINING DEFENSE-INDUSTRY SALES Giga-tronics viewsthedefense industry (both domestic and international) asvoting power of holders of stock in our Company by issuing shares of preferred stock with certain voting, conversion and/or redemption rights. In the event of amajor sourceproposed merger, tender offer or other attempt to gain control ofsales revenues. Defense industry sales (including direct salesour Company that the board of directors does not believe tothe United States and government agencies) accounted for 28%, 32%, and 28% of Giga-tronics's net revenuesbe in thefiscal years 1997, 1996 and 1995, respectively. Inbest interests of our shareholders, thepast several years, salesboard of directors could issue additional preferred stock, which could make any such takeover attempt more difficult to complete. The Company’s board of directors does not intend to issue any preferred stock except on terms that thedefense industryboard deems to be ingeneral, and direct sales totheUnited States and foreign government agencies in particular, have declined. Giga-tronics believes that this softening of product orders, and resulting decline in defense sales revenues, is indicativebest interests of theworld-wide decline in governmental defense spending. Any further decline in defense orders as a consequence of the foregoing circumstance, or otherwise, could have a material adverse effect on the business, operating results, financial conditionCompany andcash flows of Giga-tronics. 57 POTENTIAL VOLATILITY OF COMMON STOCK PRICEour shareholders.Transfer Agent and Registrar
The
market price of the Commontransfer agent and registrar for our common stock is American Stockcould be subject to significant fluctuations in response to variations in quarterly operating results, shortfalls in revenues or earnings from levels expected by securities analysts and other factors such as announcements of technological innovations or new products by Giga-tronics or by competitors, government regulations or developments in patent or other proprietary rights. In addition, the Nasdaq National Market and other stock markets have experienced significant price fluctuations in recent months. These fluctuations often have been unrelated to the operating performance of the specific companies whose stocks are traded. Broad market fluctuations, as well as general foreign and domestic economic conditions, may adversely affect the market price of the Common Stock. LIMITED LIQUIDITY FOR SHAREHOLDERS AND POTENTIAL ADVERSE IMPACT ON GIGA-TRONICS STOCK PRICE Giga-tronics stock has historically traded on thin volume on Nasdaq. Giga-tronics shareholders may not be able to sell a significant volume of stock if they wish to increase their liquidity. In addition, their effort to sell significant volume of their stock could result in a depression of the Giga-tronics share price. In any circumstance, such shareholdings will be subject to the vagaries of the marketplace. GIGA-TRONICS REVENUES COULD DECREASE DUE TO DECLINING ORDER INTAKE Current softness in the market for Giga-tronics products has resulted in a substantial decline in backlog. If this trend cannot be reversed in the near term, shipments in the current year could fall short of plan with a concurrent decline in earnings. UNCERTAIN IMPACT OF RECENT AND FUTURE ACQUISITIONS; DIFFICULTIES AND COST OF INTEGRATION During fiscal years 1997 and 1998, Giga-tronics acquired all of its current subsidiaries, including ASCOR, Inc. ("ASCOR"), Viking, and Ultracision; and its acquisition of Microsource scheduled to close in the first quarter of fiscal year 1999. Giga-tronics has acquired these companies with the expectation that the acquisitions would result in long-term strategic benefits. The realization of the benefits sought from these acquisitions depends on the ability of Giga-tronics to effectively utilize the joint product development capabilities, sales and marketing capabilities, administrative organizations and facilities of these companies. There can be no assurance that these benefits will be achieved or that the activities of Giga-tronics will be integrated in a coordinated, timely and efficient manner. The combination of these entities also will require the dedication of management resources, which will detract such persons' attention from the day-to-day business of Giga-tronics. There can be no assurance that the integration will be completed without disrupting Giga-tronics's businesses. The inability of Giga-tronics to effectively utilize resources and to achieve integration in a timely and coordinated fashion could result in a material adverse effect on Giga-tronics's financial condition, operating results and cash flows. Prior to the acquisition of Viking and Ultracision, Giga-tronics had no experience in the semiconductor manufacturing equipment industry. As a result, integration of the companies may be difficult. The difficulties may be increased by the necessity of coordinating geographically separate organizations and addressing possible differences in corporate cultures and management philosophies. Finally, expenditures related to the development of new products by these subsidiaries have, and may in the future, impact the financial results of Giga-tronics. The future success of Giga-tronics may depend on its ability to steadily incorporate advancements in semiconductor technologies into its new products. The impact of these new subsidiaries on the operations of Giga-tronics remains uncertain. 68 As part of its business strategy, Giga-tronics intends to broaden its product lines and expand its markets, in part through the acquisition of other business entities. Any such future acquisitions would be accompanied by the risks commonly encountered with acquisitions of other business entities. Such risks include, among other things, the difficulty of assimilating the operations and personnel of the acquired companies, the potential disruption of Giga-tronics' business, the inability of Giga-tronics' management to maximize the financial and strategic position of Giga-tronics by the successful incorporation of acquired technology and rights into Giga-tronics' service offerings, the maintenance of uniform standards, controls, procedures and policies, the potential loss of key employees of acquired companies, and the impairment of relationships with employees and customers as a result of changes in management. No assurances can be given that any acquisition by Giga-tronics will or will not occur, that if an acquisition does occur that it will not materially and adversely affect Giga-tronics or that any such acquisition will be successful in enhancing Giga-tronics's business. Giga-tronics currently contemplates that future acquisitions may involve the issuance of additional shares of Giga-tronics Common Stock. Any such issuances may result in dilution to all shareholders of Giga-tronics. There can be no assurance that the announcement of the future acquisitions will not result in a downturn of the price of Giga-tronics Common Stock. DEPENDENCE UPON KEY PERSONNEL Giga-tronics's future success is highly dependent on certain key management and technical personnel. The loss of any one of these key personnel could have a material adverse impact on Giga-tronics's results of operation. In addition, since competent management personnel and personnel capable of performing the foregoing functions are in great demand, there can be no assurance that Giga-tronics will be able to attract and retain such personnel on a timely basis and on terms acceptable to it. It is anticipated that Giga-tronics's success will depend in large part upon attracting and retaining highly-skilled managerial and other employees. DEPENDENCE UPON KEY SUPPLIERS Certain of the components and subassemblies included in the products of Giga-tronics are obtained from a single supplier or a limited group of suppliers. Each of these suppliers has sold products to Giga-tronics during the last several years, and Giga-tronics has no reason to expect that they will not continue to renew these contracts in the future. Giga-tronics believes that alternative sources could be obtained and qualified to supply these products. Nevertheless, a prolonged inability to obtain certain components could have an adverse effect on operating results and could result for the period during which such alternative sources are sought. INTERNATIONAL OPERATIONS AND EXPANSION International sales accounted for 28.3%, 31.7% and 27.8% of Giga-tronics's net revenues in the fiscal years 1997, 1996 and 1995, respectively. Giga-tronics anticipates that international sales will continue to account for a significant portion of net sales. Additionally, Giga-tronics intends to continue expansion of international operations. As a result, a significant portion of Giga-tronics's sales and operations will be subject to certain risks normally associated with international operations, including tariffs and other barriers, difficulties in staffing and managing foreign subsidiary and branch operations, potentially adverse tax consequences and the possibility of difficulties in accounts receivable collection. In addition to the uncertainty as to Giga-tronics's ability to expand its international presence, there are certain risks inherent in doing business on an international level, such as unexpected changes in regulatory requirements, political instability, fluctuations in currency exchange rates, and seasonal reductions in business activity, any of which could adversely impact the success of international operations. Sales of products by Giga-tronics are denominated principally in U.S. dollars. Accordingly, any increase in the value of the U.S. dollar as compared to currencies in the companies' principal 79 overseas markets would increase the foreign currency-denominated cost of the companies' products, which may negatively affect the companies' sales in those markets. In addition, effective patent, copyright, trademark and trade secret protection may be limited or unavailable under the laws of certain foreign jurisdictions. There can be no assurance that one or more of such factors will not have a material adverse effect on Giga-tronics's international operations and, consequently, on the business, operating results, financial condition and cash flows of Giga-tronics. YEAR 2000 COMPLIANCE Many currently installed computer systems and software products are coded to accept only two digit entries in the date code field, rendering them unable to distinguish 21st century dates from 20th century dates. As a result, many companies' software and computer systems may need to be upgraded or replaced to comply with such "Year 2000" requirements. Although theTransfer & Trust Companybelieves that its systems are Year 2000 compliant, the Company's suppliers and/or customers may have software or systems which are not Year 2000 compliant. The purchasing patterns of the Company's customers may be affected by Year 2000 issues and such purchasers may expend significant resources to correct their current systems for Year 2000 compliance. These expenditures may result in reduced funds available to purchase the Company's products. Failure of the systems of such third parties to operate properly may have and adverse effect on the Company's business, results of operations and financial condition. DIVIDENDS UNLIKELY Giga-tronics has never paid cash dividends on its capital stock and does not anticipate paying any cash dividends for the foreseeable future. 810LLC, 59 Maiden Lane, Plaza Level, New York, NY 10038.USE OF PROCEEDS
The Company will not receive any of the proceeds of the Common Shares offered hereunder by the Selling Shareholders. SELLING SHAREHOLDERS Of the Common Shares offered hereby, 419,997 shares were issued to former Viking shareholders pursuant to the Viking Merger Agreement, pursuant to which Giga-tronics acquired all of the outstanding capital stock of Viking and Viking became a wholly-owned subsidiary of the Company. In addition, 516,992 shares were issued by the Company pursuant to the Ultracision Merger Agreement, pursuant to which the Company acquired all of the outstanding capital stock of Ultracision and Ultracision became a wholly-owned subsidiary of the Company. The Company may from time to time supplement or amend this Prospectus, as required, to provide other information with respect to the Selling Shareholders. The following table sets forth certain information regarding ownership of the Company's Common Stock by the Selling Shareholders as of March 28, 1998, including their names, their positions with the Company where applicable, and the number of Shares of Common Stock owned by them and offeredAll securities sold pursuant to this
Prospectus. Because the Selling Shareholders may offer all or part of the Common Stock which they hold pursuant to the offering contemplated by this Prospectus and because their offering is not being underwritten on a firm commitment basis, no estimate can be given as to the amount of the Common Stock thatprospectus will beheldoffered and sold by theSelling Shareholders upon termination of this offering. 911
NUMBER OF SHARES OF COMMON STOCK NUMBER OF SHARES SELLING SHAREHOLDER BENEFICIALLY OWNED PERCENTAGE OF CLASS OFFERED HEREBY(1) ------------------- ------------------------ ------------------- -----------------Gordon & Margaret Hampton(1) 170,719 3.9% 170,719 Ronald Hayes & Lois Hayes 15,032 * 15,032 Trust(1) Leonard & Carol Brown(1) 48,612 1.1% 48,612 Leroy & Celia Staufenbiel(1) 3,758 * 3,758 Kalathil & Mary Pappachan(1) 25,457 * 25,457 Edward & Janis Martinelli(1) 12,342 * 12,342 Dan Markowitz(1) 26,307 * 26,307 Vicko Matulovic (1)(2) 176,809 4.1% 176,809 James P. Davidson & 9,395 * 9,395 Jean K. Davidson, Trustee of the Davidson Family Trust(1) Norman Doyle(1) 5,261 * 5,261 Nancy Tressel(1) 22,549 * 22,549 Reuben Baltazar(1) 751 * 751 Curt M. Berggren 153,773 3.6% 153,773 Kenyon M. King 153,773 3.6% 153,773 Martin E. Suorea 20,636 * 20,636 Richard Greenan 20,636 * 20,636 Roland S. DeAngelo 20,636 * 20,636 Gail Inlow 6,197 * 6,197 Carl Berggren 20,696 * 20,696 David Berkstresser 2,060 * 2,060 Mark Meder 8,257 * 8,257 Susan Kiesling 4,121 * 4,121 William Kiesling 4,121 * 4,121 William Ted Stein 4,121 * 4,121 Gary K. Stein 1,030 * 1,030* Less than 1%. - ---------------------- (1) Of the shares offered hereby, Common Shares issued pursuant to the Ultracision Merger Agreement may not be transferred until such time as the Company has publicly released a report including the combined financial results of Giga-tronics and Ultracision for a period of at least thirty (30) days of combined operations of Giga-tronics and Ultracision within the meaning of the Commission's Accounting Series Release No. 130, as amended. 1012 (2) Includes 61,284 Common Shares held by the Matulovic Family Trust, 30,065 Common Shares held by the Matulovic Qtip Trust and 84,709 Common Shares held by the Matulovic By-Pass Trust. Gordon Hampton is the President of Ultracision and Curt Berggren is the President of Viking. In addition, certain of the Selling Shareholders are employees of the Ultracision or Viking subsidiaries, respectively, of Giga-tronics. 1113 PLAN OF DISTRIBUTION The Companyselling shareholder. We will not receive any of the proceeds fromthe sale by the Selling Shareholderssuch sales.PLAN OF DISTRIBUTION
The selling shareholder, which as used in this prospectus includes donees, pledgees, transferees or other successors-in-interest selling shares of
the Common Shares offered hereby. The Company intends to maintain the effectiveness of the registration statement until the earliest of (a) date upon which all of the Common Shares have been disposed ofcommon or interests inaccordance with the registration statement or Rule 144 under the Securities Act, (b)common shares received after the dateupon which the Common Sharesof this prospectus from Alara as a gift, pledge, distribution or other transfer, may,be sold in the public market in a three month period without registration under the Securities Act pursuant to Rule 144 or (c) the twelve month anniversary of the effective date of the registration statement. The Common Shares offered hereby may be soldfrom time to time,bysell, transfer or otherwise dispose of any or all of their shares of common stock or interests in shares of common stock on any stock exchange, market or trading facility on which theSelling Shareholders,shares are traded orby pledgees, donees, transferees or other successorsininterest. Such salesprivate transactions. These dispositions may bemade on one or more exchanges or inat fixed prices, at prevailing market prices at theover-the-counter market, or otherwise at prices and at terms then prevailing ortime of sale, at prices related to thethen currentprevailing market price,or in negotiated transactions. The Common Shares may be sold by one or more of the following: (a) a block trade in which the broker or dealer so engaged will attempt to sell the Common Shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker or dealer as principal and resale by such broker or dealer for its account pursuant to this Prospectus; (c) an exchange distribution in accordance with the rules of such exchange; and (d) ordinary brokerage transactions and transactions in which the broker solicits purchasers. In effecting sales, brokers or dealers engaged by the Selling Shareholders may arrange for other brokers or dealers to participate. Brokers or dealers will receive commissions or discounts from the Selling Shareholders in amounts to be negotiated prior to the sale. In addition, any securities covered by this Prospectus which qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than pursuant to this Prospectus. The Selling Shareholders and any such underwriters, dealers or agents which participate in the distribution of the Common Shares may be deemed to be underwriters within the meaning of the Securities Act, and any profit on the sale of the Common Shares by them and any discounts, commissions or concessions received by them may be deemed to be underwriting discounts and commissions under the Securities Act. The Common Shares may be sold from time to time in one or more transactions at a fixed offering price, which may be changed, orat varying prices determined at the time of sale, or at negotiated prices.Such pricesThe selling shareholder may use any one or more of the following methods when disposing of shares or interests therein:
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ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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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;
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purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
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an exchange distribution in accordance with the rules of the applicable exchange;
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privately negotiated transactions;
-11-
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short sales effected after the date the registration statement of which this Prospectus is a part is declared effective by the SEC;
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through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise;
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broker-dealers may agree with the selling shareholder to sell a specified number of such shares at a stipulated price per share;
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a combination of any such methods of sale; and
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any other method permitted by applicable law.
The selling shareholder may, from time to time, pledge or grant a security interest in some or all of the shares of our common stock owned by it and, if it defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, 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 amending the list of selling shareholders to include the pledgee, transferee or other successors in interest as selling shareholder under this prospectus. The selling shareholder also may transfer the shares of common shares in other circumstances, in which case the transferees, pledgees or other successors in interest will be
determined bytheSelling Shareholders or by an agreement between the Selling Shareholders and any such underwriters or dealers. Brokers or dealers acting inselling beneficial owners for purposes of this prospectus.In connection with the sale of
Common Shares contemplatedour common shares, the selling shareholder may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common shares in the course of hedging the positions they assume. The selling shareholder may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling shareholder may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by thisProspectusprospectus, which shares such broker-dealer or other financial institution mayreceive feesresell pursuant to this prospectus (as supplemented or amended to reflect such transaction).The aggregate proceeds to the selling shareholder from the sale of the common shares offered by them will be the purchase price of the common stock less discounts or commissions, if any. The selling shareholder reserves the right to accept and, together with its agents from time to time, to reject, in
connection therewith. Atwhole or in part, any proposed purchase of common shares to be made directly or through agents. We will not receive any of thetimeproceeds from this offering. Upon any exercise of the warrants by payment of cash, however, we will receive the exercise price of the warrants.The selling shareholder also may resell all or a
particular offerportion ofCommon Shares is made,the common shares in open market transactions in reliance upon Rule 144 under the Securities Act of 1933, provided that it meets the criteria and conforms to the requirements of that rule.The selling shareholder and any underwriters, broker-dealers or agents that participate in the sale of the common shares or interests therein may be “underwriters” within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling shareholder who are “underwriters” within the meaning of Section 2(11) of the Securities Act will be subject to the prospectus delivery requirements of the Securities Act.
To the extent required,
a supplementthe shares of our common stock tothis Prospectus (each, a "Prospectus Supplement") willbedistributed which will identify and set forthsold, theaggregate number of Common Shares being offered and the termsnames of the selling shareholder, the respective purchase prices and public offeringincludingprices, thename ornames of anyunderwriters, dealersagents, dealer oragents, the purchase price paid byunderwriter, anyunderwriter for Common Shares purchased from the Selling Shareholders, any discounts, commissions and other items constituting compensation from the Selling Shareholders and/or the Company and any discounts,applicable commissions orconcessions alloweddiscounts with respect to a particular offering will be set forth in an accompanying prospectus supplement or,reallowed or paid to dealers, including the proposed selling price to the public. Such Prospectus Supplement and,ifnecessary,appropriate, a post-effective amendment to theRegistration Statement of whichregistration statement that includes thisProspectusprospectus. Alara is not affiliated with apart, will be filed with the Commission to reflect the disclosure of additional information with respect to the distribution of the Common Shares. The Company has advised the Selling Shareholders that the anti-manipulation rules under the Exchange Act may apply to sales of Common Shares in the market and to the activities of the Selling Shareholders and their affiliates. The Selling Shareholders have advised the Company that during such time as the Selling Shareholders may be engaged in the attempt to sell the Common Shares registered hereunder, they will (i) not engage in any stabilization activity in connection with any of the Company's securities, (ii) not bid for or purchase any of the Company's securities or rights to acquire the Company's 1214 securities other than as permitted under the Exchange Act; (iii) not effect any sale or distribution of the Common Shares until after the Prospectus shall have been appropriately amended or supplemented, if required, to set forth the terms thereof; and (iv) effect all sales of Common Shares in broker's transactions through broker-dealers acting as agents, in transactions directly with market makers or in privately negotiated transactions where no broker or other third party (other than the purchaser) is involved.licensed broker-dealer.In order to comply with
certain states'the securities laws of some states, if applicable, theCommon Shares willcommon stock may be sold insuchthese jurisdictions only through registered or licensed brokers or dealers. Incertainaddition, in some states theCommon Sharescommon stock may not be sold unless it has been registered or qualified for salein such state,orunlessan exemption from registration or qualification requirements isavailable. No director, officer or agentavailable and is complied with.-12-We have advised the selling shareholder that the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities of the
Company is expectedselling shareholder and their affiliates. In addition, to the extent applicable we will make copies of this prospectus (as it may beinvolvedsupplemented or amended from time to time) available to the selling shareholder for the purpose of satisfying the prospectus delivery requirements of the Securities Act. The selling shareholder may indemnify any broker-dealer that participates insoliciting offers to purchase the Common Shares offered hereby, and no such person will be compensated by the Company fortransactions involving the sale ofany Common Shares. The Company will pay all oftheexpenses incident to the offering and sale of the Common Shares, other than commissions, discounts and fees of underwriters, dealers or agents. The Company has agreed to indemnify certain of the Selling Shareholders who were former shareholders of Ultracision and certain other personsshares against certain liabilities, including liabilities arising under the Securities Act.LEGAL MATTERS Certain legal mattersWe have agreed to indemnify the selling shareholder against liabilities, including liabilities under the Securities Act and state securities laws, relating to the registration of the shares offered by this prospectus.
We have agreed with the selling shareholder to keep the registration statement of which this prospectus constitutes a part effective until the earliest of (1) such time as all of the shares covered by this prospectus have been disposed of pursuant to and in accordance with such registration statement, (2) the date that the common shares are no longer outstanding, or (3) such time that the selling shareholder has sold the common shares without assigning the right to registration.
SELLING SHAREHOLDER
On November 10, 2011, February 25, 2013 and July 8, 2013 we issued the (i) warrants that were exercised for the common shares, and (ii) preferred stock that is convertible into the common shares, covered by this prospectus to Alara, who is the initial selling shareholder under this prospectus, in transactions exempt from the registration requirements of the Securities Act. On February 16, 2015 and February 23, 2015, we issued additional warrants that may be exercised for the common shares covered by this prospectus to Alara in transactions exempt from the registration requirements of the Securities Act. Alara, or its successors, including transferees, may from time to time offer and sell, pursuant to this prospectus or a supplement to this prospectus, any or all of the common stock that it may own.
For purposes of this prospectus, we have assumed that, after completion of the offering, none of the common shares covered by this prospectus will be beneficially owned by Alara.
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to the securities. To our knowledge, Alara has sole voting and investment power with respect to the securities, except as noted below.
Securities Covered by this Prospectus Held by Selling Shareholder
The following table sets forth information about the selling shareholder and its ownership of common shares to be offered pursuant to this prospectus. All percentages are based on9,239,703 pro forma shares of our common stock outstanding as of June 16, 2015. The calculated percentages assume the conversion of all Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock and the exercise of all previously unexercised warrants issued to selling shareholder as shown by this table.
Common shares outstanding
6,293,281 Common shares issuable upon conversion of preferred shares
1,853,351 Common shares issuable upon exercise of warrants
1,093,071 Pro forma common shares outstanding
9,239,703 We do not know when or in what amounts the selling shareholder may offer common stock for sale. It is possible that the selling shareholder will not sell any or all of the common stock offered under this prospectus. Because the selling shareholder may offer all or some of the common stock pursuant to this prospectus, and because we have been advised that there are currently no agreements, arrangements or understandings with respect to the sale of any such common stock, we cannot estimate the number of shares of common stock that will be held by the selling shareholder after completion of the offering. For purposes of the table below, we have assumed that the selling shareholder would sell all of the common stock beneficially owned by it and therefore would hold no common stock following the offering, other than shares of common stock that the selling shareholder informed us that is acquired independently of the private placements and are not including for resale in this offering. The selling shareholder has requested that its full allotment of securities be registered for resale in this offering.
-13-The information set forth below is based on information provided by Alara.
Name ofSelling Shareholder
Shares of common stock beneficially ownedbeforeoffering(1)
Percentage of common stock beneficially owned before offering (1)(2)
Shares of common stock that may be sold intheoffering(1)
Shares of common stock beneficially owned post-offering(3)
Percentage of common stock beneficially owned post-offering(%)(3)
Alara Capital AVI II, LLC
3,956,456 42.82 % 3,956,456 0 0.0 (1) Represents 1,010,034 shares currently held by Alara and 2,946,422 shares of common stock that Alara has the right to acquire, consisting of 999,700 shares issuable upon conversion of 9,997 outstanding shares of Series B Preferred Stock, 342,465 shares issuable upon conversion of 3,424.65 outstanding shares or Series C Preferred Stock, 511,186 shares issuable upon conversion of 5,111.86 shares of Series D Preferred Stock and 1,093,071 shares issuable upon the exercise of warrants.
(2) Beneficial ownership is determined in accordance with the rules and regulations of the SEC and is calculated on the basis of 6,293,281 shares of common stock outstanding as of June 16, 2015, plus the 1,853,351 common shares issuable upon the conversion of preferred shares and 1,093,071 common shares issuable upon the exercise of warrants, as discussed above under “Securities Covered by this Prospectus Held by Selling Shareholder.”
(3) Assumes that the selling shareholder will sell all shares offered by it under this prospectus.
-14-LEGAL MATTERS
The validity of the
Common Sharescommon stock offered herebywill behas been passed upon forthe Companyus byGibson, DunnSheppard Mullin Richter &Crutcher LLP, San Francisco, California.Hampton LLP.EXPERTS
The consolidated financial statements
and schedules of Giga-tronics Incorporated as of March 29, 1997, and March 30, 1996 andincorporated in this Prospectus by reference to the Annual Report on Form 10-K for theyearsyear ended March29, 1997, March 30, 1996, and March 25, 199528, 2015 have been so incorporatedby reference herein and in the registration statementin relianceuponon the report ofKPMG Peat MarwickCrowe Horwath LLP, independentcertifiedregistered publicaccountants, incorporated by reference herein, and uponaccounting firm, given on the authority of said firm as experts inaccountingauditing andauditing. 1315 ============================================================================== NO PERSON HAS BEEN AUTHORIZED TO GIVE ANYaccounting.WHERE YOU CAN FIND MORE INFORMATION
OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED ORWe file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC’s website at http:/www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at http://www.gigatronics.com. Our website is not a part of this prospectus. You may also read and copy any document we file at the SEC’s public reference room, 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference room.
Our common stock is listed on the Nasdaq Stock Market. You may also inspect reports, proxy statements and other information at the offices of the Nasdaq Stock Market, One Liberty Plaza, 165 Broadway, New York, New York 10006.
INFORMATION INCORPORATEDBY REFERENCE
IN THIS PROSPECTUS OR IN ANY PROSPECTUS SUPPLEMENT. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, ANY UNDERWRITER OR THEIR RESPECTIVE AFFILIATES. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS SET FORTH HEREIN OR THEREIN OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. ------------ TABLE OF CONTENTSThe SEC allows us to “incorporate by reference” information we file with it, which means that we can disclose important information to you by referring you to other documents. The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the SEC will automatically update and supersede this information. In all cases, you should rely on the later information over different information included in this prospectus.
We incorporate by reference the documents listed below and all future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the offering, except to the extent that any information contained in such filings is deemed “furnished” in accordance with SEC rules:
PAGE ----AVAILABLE INFORMATION 2 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE●
Annual Report on Form 10-K for the fiscal year ended March 28, 2015;
●
Current Reports on Form 8-K filed on May 14, 2015, May 20, 2015, May 20, 2015 and June 3,
THE COMPANY 4 MATERIAL CHANGE 4 RISK FACTORS 5 USE OF PROCEEDS 9 SELLING SHAREHOLDERS 9 PLAN OF DISTRIBUTION 12 LEGAL MATTERS 13 EXPERTS 132015;======================================================================= ======================================================================= GIGA-TRONICS INCORPORATED ------------ 936,989 SHARES ------------ COMMON STOCK ------------ ____________ PROSPECTUS ____________ _______, 1998 =======================================================================16
●
The description of our common stock included in the registration statement on Form 8-A filed on July 31, 1984.
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
Giga-tronics Incorporated
4650 Norris Canyon Road
San Ramon, CA 94583
Attn: Investor Relations
(925) 328-4650PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEMItem 14.
OTHER EXPENSES OF DISTRIBUTION
Registration fee...................................................................$ 1,881 Blue Sky fees and expenses.........................................................$ 0 Legal fees and expenses*...........................................................$165,000 Printing expenses*.................................................................$ 7,000 Accounting fees and expenses*......................................................$200,000 Miscellaneous*.....................................................................$297,000 -------- Total expenses*..........................................................$670,881 ========- -------------------- * Estimated ITEMOther Expenses of Issuance and DistributionThe following table sets forth the various expenses to be incurred in connection with the sale and distribution of the securities being registered hereby, all of which will be borne by the Company (except any underwriting discounts and commissions and expenses incurred by the selling shareholder for brokerage, accounting, tax or legal services or any other expenses incurred by the selling shareholder in disposing of the shares). All amounts shown are estimates except the SEC registration fee.
-15-
SEC registration
$ 848.22 Accountant’s fees and expenses
9,000 Legal fees and expenses
15,000 Printing and miscellaneous costs
500 Total
$ 25,348.22 Item 15.
INDEMNIFICATION OF DIRECTORS AND OFFICERS Sections 204Indemnification of Directors and OfficersThe Company’s Articles of Incorporation provide that the liability of our directors for monetary damages shall be eliminated to the fullest extent permissible under California law. Our Articles also provide that we are authorized to provide indemnification of directors and other agents for breach of duty to the corporation and its shareholders through bylaw provisions or through agreements with the agents, or both, in excess of the indemnification otherwise permitted by Section 317 of the California
General Corporation Law andCorporations Code, subject only to theRegistrant's Bylaws contain provisions authorizing thelimitations on excess indemnificationof corporate directors and officers against certain liabilities and expenses incurredset forth inconnection with proceedings involving such persons in their capacities as directors and officers, including proceedings under the Securities Act or the Exchange Act. Article VSection 204 of theRegistrant's Bylaws requires the RegistrantCalifornia Corporations Code with respect toindemnify all directors and officersactions for breach of duty to thefullest extent permitted by California lawcorporation andalso provides for the advancement of expenses to officers and directors in connection with their defense of civil or criminal proceedings upon the written undertaking of the director or officer to repay the advance in the event it is ultimately determined that such individual is not entitled to indemnification under the California General Corporation Law. In addition, the Registrant has entered into supplemental indemnification agreements withitsdirectors which broaden the scope of indemnity beyond that expressly provided by the Bylaws and the California General Corporation Law. These supplemental contracts are permissible under California General Corporation Law and have been approved by the Registrant'sshareholders. TheagreementsCompany’s bylaws provide that thedirectors with indemnificationCompany shall indemnify any person who is or was a party or is threatened tothe fullest possible extent permitted by law against all expenses (including attorney fees), judgments, fines and settlement amounts incurred or paid by them inbe made a party to anyaction orproceeding(including any action by or in the right of the Registrant)by reason oftheir service either as a director, officer, employeethe fact that that person is or was an agent of theRegistrant or, at the Registrant's request, as a director, officer, agent or employee of another company, partnership, joint venture, trust or other enterprise. However, no indemnity will be provided to any director with respect to conduct which is adjudged to be knowingly fraudulent, deliberately dishonest or to constitute willful misconduct. For the undertaking with respect to indemnification, see Item 17 herein.17 ITEM 16. EXHIBITS
Title of Exhibit ----------------2.1 Agreement and Plan of Reorganization date as of June 6, 1997 among Giga-tronics Incorporated, GTV Acquisition Corp. and Viking Semiconductor Equipment, Inc. 2.2 Agreement and Plan of Reorganization dated as of December 2, 1997 among Giga-tronics, Incorporated, Giga Acquisition Corp. and Ultracision, Inc. (incorporated by reference to the Company's Current Report on Form 8-K dated December 2, 1997). 4.1 Registration Rights Agreement, dated as of December 22, 1997 among the Company and the shareholders of Ultracision, Inc. 5.1 Opinion of Gibson, Dunn & Crutcher LLP regarding legality of securities being registered. 23.1 Consent of Independent Auditors. 23.2 Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1). 24.1 Power of Attorney (included as part of signature page filed herewith).ITEM 17. UNDERTAKINGS Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors,Company. The Company also maintains officers andpersons controlling the Registrant pursuant to the provisions set forth indirector’s liability insurance.Item
15 above, or otherwise, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment16. ExhibitsThe exhibit list required 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 Securities Act and will be governed by the final adjudication of such issue. 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) thatthis item is incorporated by referencein the registration statement shall be deemed to be a new registration statement relatingto thesecurities offered therein, andexhibit index immediately following theofferingsignature page ofsuch securities at that time shall be deemed to be the initial bona fide offering thereof.this registration statement.Item 17 Undertakings.
The undersigned
Registrantregistrant 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)
Toto include any prospectus required by Section 10(a)(3) of the Securities Act of1933;1933, as amended (the “Securities Act of 1933”);(ii)
Toto reflect in the prospectus any facts or events arising after the effective date ofthethis registration statement (or the most recent post-effective amendment thereof)218which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the 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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and(iii)
Toto include any material information with respect to the plan of distribution not previously disclosed inthethis registration statement or any material change to such information inthethis registration statement;provided, however, that paragraphs (1)(i), (1)(ii) and (1)
(ii)(iii) do not apply ifthe registration statement is on Form S-3, Form S-8 or Form F-3, andthe information required to be included in a post-effective amendment by those paragraphs is contained inperiodicreports filed with or furnished to the Commission by theRegistrantregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are incorporated by reference inthethis registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of this 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 initialbona fide offering thereof.
-16-(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.
(4)
IfThat, for theRegistrantpurpose of determining liability under the Securities Act of 1933 to any purchaser:(i) each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a
foreign private issuer,new effective date of the registration statement relating tofile a post-effective amendment tothe securities in the registration statement toinclude any financial statements required by Rule 3-19which that prospectus relates, and the offering ofthis chaptersuch securities at that time shall be deemed to be thestart of any delayedinitialbona fide offering thereof.Provided, however , that no statement made in a registration statement orthroughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3)prospectus that is part of theAct need not be furnished, provided,registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of theRegistrant includesregistration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.(5) That, for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications the undersigned registrant will be a
post-effective amendment, financial statementsseller to the purchaser and will be considered to offer or sell such securities to such purchaser:(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to
this paragraph (a)(4)Rule 424;(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other
information necessary to ensurecommunication thatall other informationis an offer in theprospectus is at least as current asoffering made by thedateundersigned registrant to the purchaser.The registrant hereby undertakes that, for purposes of
those financial statements. Notwithstandingdetermining any liability under theforegoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3)Securities Act of 1933, each filing of theAct or Rule 3-19 of this chapter if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the Registrantregistrant’s annual report pursuant to Section1313(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of theSecuritiesExchangeAct of 1934Act) thatareis incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to theForm F-3. 319securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona 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 described herein, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 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 Securities Act of 1933 and will be governed by the final adjudication of such issue.
-17-SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
CompanyRegistrant 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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Ramon, State of California, onthis 10th day of March, 1998. GIGA-TRONICS INCORPORATED By: /s/ George H. Bruns, Jr. ------------------------------------- George H. Bruns, Jr. Chairman and Chief Executive Officer and Director20June 18, 2015.
Giga-tronics Incorporated
By
/s/ John R. Regazzi
John R. Regazzi Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS: That the undersigned officersPRESENTS, that each person whose signature appears below constitutes anddirectors of Giga-tronics Incorporated, a California corporation, do hereby constitute and appoint George H. Bruns, Jr. and Mark H. Cosmez, II,appoints John R. Regazzi or Steven D. Lance, and each of themthe(with full power to act alone), as his or her true and lawful attorneys-in-fact and agents, with fullpowerpowers of substitution andauthority to doresubstitution, for him or her and in his or her name, place and stead, in any and allacts and things andcapacities, toexecute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority tosignthe names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, toany and all amendmentsboth(including pre-effective and post-effectiveand supplementsamendments) to this Registration Statement, and toanyfile the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to allinstrumentsintents and purposes as he ordocuments filed as part ofshe might or could do inconjunction with this Registration Statement or amendments or supplements thereof,person, hereby ratifying andeach of the undersigned hereby ratifies and confirmsconfirming all thatallsaidattorneysattorneys-in-law and agents, oreither of them, shalltheir substitute or substitutes, may lawfully do or cause to be done by virtue hereof.This Power of Attorney may be signed in several counterparts. IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated. Pursuant toIn accordance with the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed
belowby the following persons in the capacities and on the datesindicated.stated.
Signature
Title
Date
- --------- ----- ----/s/ George H. Bruns, Jr. Chairman and/s/ John R. Regazzi
John R. Regazzi
Chief Executive
March 10, 1998 - ------------------------Officerand Director George H. Bruns, Jr.(Principal Executive Officer)/s/ Mark H. Cosmez, IIand DirectorJune 18, 2015
/s/ Steven D. Lance
Steven D. LanceVice President of
Finance/ March 10, 1998 - ------------------------Finance, Chief Financial OfficerMark H. Cosmez, IIand Secretary (Principal FinancialOfficerandPrincipalAccounting Officer)/s/June 18, 2015
/s/ Garrett A. Garrettson
Garrett A. GarrettsonChairman of the Board of Directors
June 18, 2015
/s/ Gordon L. Almquist
Gordon L. AlmquistDirector
June 18, 2015
/s/ James A. Cole
Director March 10, 1998 - ------------------------
James A. Cole/s/ Edward D. ShermanDirector
March 10, 1998 - ------------------------ Edward D. Sherman /s/ Robert C. WilsonJune 18, 2015
/s/ Kenneth A. Harvey
Kenneth A. HarveyDirector
March 10, 1998 - ------------------------ Robert C. WilsonJune 18, 2015
21-18-
/s/ Lutz P. Henckels
Lutz P. HenckelsDirector
June 18, 2015
/s/ William J. Thompson
William J. ThompsonDirector
June 18, 2015
-19-EXHIBIT INDEX
2.1 Agreement and Plan3.1
Articles of
Reorganization dateIncorporation of the Company, asof June 6, 1997 among Giga-tronics Incorporated, GTV Acquisition Corp. and Viking Semiconductor Equipment, Inc. 2.2 Agreement and Plan of Reorganization dated as of December 2, 1997 among Giga-tronics, Incorporated, Giga Acquisition Corp. and Ultracision, Inc. (incorporatedamended, incorporated by reference to Exhibit 3.1 to theCompany'sCompany’s Annual Report on Form 10-K for the fiscal year ended March 27, 1999.3.2
Certificate of Determination of Preferences of Preferred Stock Series A of the Company, incorporated by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended March 27, 1999.
3.3
Certificate of Determination of Series B Convertible Voting Perpetual Preferred Stock of the Company, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K
dated December 2, 1997).filed on November 14, 2011.3.4
Certificate of Determination of Series C Convertible Voting Perpetual Preferred Stock of the Company, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on February 25, 2013.
3.5
Certificate of Determination of Series D Convertible Voting Perpetual Preferred Stock of the Company, incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on July 3, 2013.
3.6
Amended and Restated Bylaws of the Company, incorporated by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K for the fiscal year ended March 29, 2008.
4.1
RegistrationRights Agreement
dated as of December 22, 1997 amongbetween the Company and American Stock Transfer & Trust Company, LLC dated January 23, 2013, incorporated by reference to Exhibit 4.1 to theshareholdersCompany’s Current Report on Form 8-K filed on January 25, 2013.4.2
Amendment No. 1 to Rights Agreement between the Company and American Stock Transfer & Trust Company, LLC dated June 27, 2013, incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on July 3, 2013.
4.3
Amendment No. 2 to Rights Agreement between the Company and American Stock Transfer & Trust Company, LLC dated February 16, 2015, incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on February 20, 2015.
4.4
Warrant to Purchase 898,634 Shares of
Ultracision, Inc.Common Stock between the Company and Alara Capital AVI II, LLC dated February 16, 2015, incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on February 20, 2015.4.5
Warrant to Purchase 194,437 Shares of Common Stock between the Company and Alara Capital AVI II, LLC dated February 23, 2015, incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on February 27, 2015.
4.6
Securities Purchase Agreement between the Company and Alara Capital AVI II, LLC dated February 16, 2015, incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 20, 2015.
-20-
4.7
Investor Rights Agreement between the Company and Alara Capital AVI II, LLC dated February 16, 2015, incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on February 20, 2015.
4.8
Amendment No. 1 to Securities Purchase Agreement and Investor Rights Agreement between the Company and Alara Capital AVI II, LLC dated February 23, 2015, incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 27, 2015.
5.1
Opinion of
Gibson, DunnSheppard Mullin Richter &Crutcher LLP regarding legality of securities being registered.Hampton LLP.23.1
Consent of
Independent Auditors.Crowe Horwath LLP, independent registered public accounting firm.23.2
Consent of
Gibson, Dunn & CrutcherSheppard Mullin Richter and Hampton LLP(to be included(included inthe opinion filed asExhibit 5.1).24.124
Power of Attorney (included
as part ofon signaturepage filed herewith)page).
-21-