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As filed with the Securities and Exchange Commission on September 1, 2000
Registration No. 333-45008-99
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NQL INC.
(Exact name of issuer as specified in its charter)
DELAWARE 33-0887356
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
2722 SOUTH FAIRVIEW STREET
SANTA ANA, CALIFORNIA 92704
(Address of Principal Executive Offices) (Zip Code)
ALPHA MICROSYSTEMS 1998 STOCK OPTION AND AWARD PLAN, AS AMENDED
(Full title of the plan)
NATIONAL REGISTERED AGENTS, INC.
9 EAST LOOCKERMAN STREET
SUITE 1B
DOVER, DELAWARE 19901
(Name and address of agent for service)
(800) 767-1553
(Telephone number, including area code, of agent for service)
Copy to:
GREGORY W. PRESTON, ESQ.
MATTHEW A. SUMROW, ESQ.
ALLEN MATKINS LECK GAMBLE & MALLORY LLP
1900 MAIN STREET, 5TH FLOOR
IRVINE, CALIFORNIA 92614-7321
(949) 553-1313
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed maximum Proposed maximum aggregate Amount of
to be registered registered offering price per unit offering price registration fee
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See below(1)
N/A N/A(1) N/A(1) N/A(1) N/A(1)
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(1) No additional securities are to be registered, and registration fees were
paid upon filing of the original Registration No. 333-45008.
The Exhibit Index for this Post-Effective Amendment follows the signature page.
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NQL INC.
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") to that certain
Registration Statement on Form S-8 (File No. 333-45008, the "Registration
Statement"), which Registration Statement accounted for the registration of an
additional 700,000 shares of Registrant's common stock under the 1998 Stock
Option and Award Plan, as amended, is being filed pursuant to Rule 414 under the
Securities Act of 1933, as amended (the "Securities Act") by NQL Inc., a
Delaware corporation (the "Registrant"), which is the successor to Alpha
Microsystems, a California corporation ("AM California"), following a statutory
merger effective on September 1, 2000 (the "Merger") for the purpose of changing
AM California's state of incorporation. Prior to the Merger, Registrant had no
assets or liabilities other than nominal assets or liabilities. In connection
with the merger, Registrant succeeded by operation of law to all of the assets
and liabilities of AM California. The Merger was approved by the shareholders of
AM California at a meeting for which proxies were solicited pursuant to Section
14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Except as modified by this Amendment, Registrant, by virtue of this
Amendment, expressly adopts the Registration Statement as its own registration
statement for all purposes of the Securities Act and the Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents originally filed by AM California with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
this reference and made a part hereof:
1. Registration Statement on Form S-8 filed on September 1, 2000,
File No. 333-45008;
2. Quarterly Report on Form 10-Q for the quarter ended March 31,
2000 filed by AM California; Quarterly Report on Form 10-Q for
the quarter ended June 30, 2000 (as amended by form 10-Q/A
filed on August 18, 2000) filed by AM California;
3. Annual Report on Form 10-K for the fiscal year ended December
31, 1999 (as amended by Form 10-K/A filed on April 28, 2000)
filed by AM California; and
4. Current Report on Form 8-K dated January 14, 2000; Current
Report on Form 8-K dated February 15, 2000 (as amended by Form
8-K/A on March 13, 2000), Current Report on Form 8-K dated
April 3, 2000 and Current Report on Form 8-K dated September
1, 2000.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act 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, all or a portion of which is incorporated or
deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or amended, to constitute a part of this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
The Common Stock is registered pursuant to Section 12 of the Exchange
Act, and, therefore, the description of securities is omitted.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock of the
Registrant subject to issuance pursuant to the Registrant's Plan, have been
passed upon by Allen Matkins Leck Gamble & Mallory LLP, 1900 Main Street, Fifth
Floor, Irvine, California 92614.
Marvin E. Garrett, a partner in the law firm of Allen Matkins Leck
Gamble & Mallory LLP, beneficially owns 32,000 shares of the Registrant's Common
Stock
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Subsection (b)(7) of Section
102 of the Delaware General Corporation Law (the "DGCL") enables a corporation
in its original certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director to the corporation or
its stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. Article EIGHTH ("Article EIGHTH") of the Registrant's Restated
Certificate of Incorporation provides that directors shall not be liable to the
Registrant or its stockholders for monetary damages for breach of a fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the DGCL as the same exists or may be
thereafter amended. Article EIGHTH also provides that any amendment,
modification or repeal of such provision shall not adversely affect any right or
protection of a director of the Registrant thereunder in respect of any act or
omission occurring prior to the time of such amendment, modification or repeal.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer acted in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided further that such director or
officer has no reasonable cause to believe his conduct was unlawful. Subsection
(b) of Section 145 of the DGCL empowers a corporation to indemnify any director
or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that despite the adjudication of liability but in view of all
of the circumstances of the case, such director or officer is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 of the DGCL further provides that (i) to the extent a
director or officer of a corporation has been successful in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) or in the
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defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification and advancement of expenses
provided for, by, or granted pursuant to, Section 145 of the DGCL shall not be
deemed exclusive of any other rights to which the indemnified party may be
entitled. In addition, Section 145 of the DGCL empowers the corporation to
purchase and maintain insurance on behalf of any person who is or was a director
or officer of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him or incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liabilities under Section 145 of the DGCL.
The Bylaws of the Registrant provide that the Registrant is required to
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may thereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Registrant or is
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust,
enterprise or nonprofit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses (including
attorneys' fees) reasonably incurred by such person. Notwithstanding the
foregoing, the Registrant is required to indemnify a person in connection with a
proceeding (or a part thereof) initiated by such person only if the proceeding
(or party thereof) was authorized by the Board of Directors of the Registrant.
The Registrant has entered, or plans to enter, into indemnification
agreements with certain of its directors and officers. The indemnification
agreements, among other things, require the Registrant to indemnify such
officers and directors to the fullest extent permitted by Delaware law, and to
advance to such directors all related expenses, subject to reimbursement if it
is subsequently determined that indemnification is not permitted. The Registrant
is also required to indemnify and to advance all expenses incurred by directors
and officers seeking to enforce their rights under the indemnification
agreements.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the attached Exhibit Index that follows the signature page.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high 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;
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(iii) To include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in
the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) in this Item 9 do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Securities and Exchange Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this
Post-Effective Amendment No. 1 to Form S-8 Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Santa Ana, State of California, on this 28th day of August, 2000.
NQL Inc.
(a Delaware corporation)
By: /s/ DOUGLAS J. TULLIO
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Douglas J. Tullio
President and Chief Executive
Officer
POWER OF ATTORNEY
Each individual whose signature appears below constitutes and appoints
Douglas J. Tullio and Robert O. Riiska, and each of them, such person's true and
lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for such person and in such person's name, place, and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Post-Effective Amendment No. 1 to Form S-8 Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to Form S-8 Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ DOUGLAS J. TULLIO President and Chief Executive Officer August 28, 2000
- ---------------------------------- (Principal Executive Officer)
Douglas J. Tullio
/s/ ROBERT O. RIISKA Chief Financial Officer August 24, 2000
- ---------------------------------- (Principal Financial and Accounting Officer)
Robert O. Riiska
/s/ BENJAMIN P. GIESS Director August 28, 2000
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Benjamin P. Giess
/s/ ROCKELL N. HANKIN Director August 24, 2000
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Rockell N. Hankin
/s/ RICHARD E. MAHMARIAN Director August 24, 2000
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Richard E. Mahmarian
/s/ CLARKE E. REYNOLDS Director August 28, 2000
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Clarke E. Reynolds
/s/ TRACEY L. RUDD Director August 28, 2000
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Tracey L. Rudd
/s/ SAM YAU Director August 28, 2000
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Sam Yau
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Restated Certificate of Incorporation of NQL Inc. (incorporated by
reference to Exhibit 3.1 to the Current Report on Form 8-K of
Registrant dated September 1, 2000)
4.2 Certificate of Designations of Rights and Preferences of Class A1
Cumulative, Redeemable and Exchangeable Preferred Stock, Class A2
Cumulative, Redeemable and Exchangeable Preferred Stock, Class B1
Cumulative, Redeemable and Exchangeable Preferred Stock, Class C1
Cumulative, Redeemable and Exchangeable Preferred Stock, Class D
Cumulative, Redeemable and Exchangeable Preferred Stock, Class E
Cumulative, Redeemable and Exchangeable Preferred Stock, and Voting
Preferred Stock of NQL Inc. (incorporated by reference to Exhibit 3.2
to the Current Report on Form 8-K of Registrant dated September 1,
2000)
4.3 Amended and Restated Bylaws of NQL Inc. (incorporated by reference to
Exhibit 3.3 to the Current Report on Form 8-K of Registrant dated
September 1, 2000)
5 Opinion of Allen Matkins Leck Gamble & Mallory LLP
10 Alpha Microsystems 1998 Stock Option and Award Plan, as amended*
23.1 Consent of Allen Matkins Leck Gamble & Mallory LLP (included as part of
Exhibit 5 hereto)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included at page 6 of the Registration Statement)
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*Previously filed with the Registration Statement on September 1, 2000.
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