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As filed with the Securities and Exchange Commission on July 15, 1999
Registration No. 33-__________________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ALPHA MICROSYSTEMS
(Exact name of issuer as specified in its charter)
California 95-3108178
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2722 SOUTH FAIRVIEW STREET
SANTA ANA, CALIFORNIA 92704
(Address of Principal Executive Offices) (Zip Code)
ALPHA MICROSYSTEMS
1998 STOCK OPTION AND AWARD PLAN
(Full title of the plan)
DOUGLAS J. TULLIO, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ALPHA MICROSYSTEMS
2722 SOUTH FAIRVIEW STREET
SANTA ANA, CALIFORNIA 92704
(Name and address of agent for service)
(714) 957-8500
(Telephone number, including area code, of agent for service)
Copy to:
DEBRA DISON HALL, ESQ.
ALLEN, MATKINS, LECK, GAMBLE & MALLORY LLP
515 SOUTH FIGUEROA STREET, 7TH FLOOR
LOS ANGELES, CALIFORNIA 90071-3398
(213) 622-5555
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of Securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per unit(*) price(*) registration fee
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Common Stock (No par value) 2,500,000 shares $6.188 $1,547,000 $430
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(*) Estimated in accordance with Rule 457(c) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee based
upon on the market price of Common Stock on July 14, 1999.
The Exhibit Index to this Registration Statement is located on page 6 of this
filing.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Alpha Microsystems, a
California corporation (the "Corporation" or the "Registrant"), with the
Securities and Exchange Commission (the "Commission") are incorporated herein by
this reference and made a part hereof:
1. Transition Report on Form 10-K for the transition period period from
February 23, 1998 to December 31, 1998.
2. Quarterly Report on Form 10-Q for the quarterly period ended March
31, 1999.
3. Description of the Corporation's Common Stock, contained in its
Registration Statement on Form 8-A, dated June 24, 1982, filed under
Section 12(b) of the Securities Exchange Act of 1934, as amended
("Exchange Act"), including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Corporation with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock of the
Corporation subject to issuance pursuant to the Corporation's 1998 Stock Option
and Award Plan, have been passed upon by Allen, Matkins, Leck, Gamble & Mallory
LLP, 18400 Von Karman, Fourth Floor Irvine, California 92612.
Marvin E. Garrett, a partner in the law firm of Allen, Matkins, Leck,
Gamble & Mallory LLP, beneficially owns 32,000 shares of the Corporation's
Common Stock
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Registrant is a California corporation. Section 317 of the General
Corporation law of the State of California authorizes indemnification of
directors, officers, employees and other agents of California corporations.
Pursuant to the Corporation's Articles of Incorporation, Bylaws and
indemnification agreements with various officers and directors, under certain
circumstances, the Corporation (i) will indemnify directors and officers (the
"Indemnitees") to the full extent authorized by the General Corporation Law of
the State of California, (ii) will advance expenses to the Indemnitees for
defending certain proceedings, and (iii) is authorized to maintain certain
policies of insurance to protect itself and any of its directors, officers or
employees. The Corporation currently maintains policies of insurance under which
the directors and officers of the Corporation are insured, within the limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, to which they are parties by reason of being or having been such
directors or officers.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by this reference.
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 of 1933, as amended (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.
(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 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 15th day of
July, 1999.
Alpha Microsystems
(a California 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
Clark E. Reynolds, Douglas J. Tullio and Jeffrey J Dunnigan, 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 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.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ DOUGLAS J. TULLIO Chairman of the Board, July 15, 1999
- ------------------------------- Chief Executive Officer
Douglas J. Tullio and Director
/s/ CARLOS D. DE MATTOS Director July 15, 1999
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Carlos D. De Mattos
/s/ BENJAMIN P. GIESS Director July 15, 1999
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Benjamin P. Giess
/s/ ROCKELL N. HANKIN Director July 15, 1999
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Rockell N. Hankin
/s/ RICHARD E. MAHMARIAN Director July 15, 1999
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Richard E. Mahmarian
/s/ CLARKE E. REYNOLDS Director July 15, 1999
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Clarke E. Reynolds
/s/ SAM YAU Director July 15, 1999
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Sam Yau
/s/ JEFFREY J. DUNNIGAN Chief Financial Officer July 15, 1999
- --------------------------------- and Secretary
Jeffrey J. Dunnigan
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1 Articles of Incorporation, as amended, of Registrant
(incorporated herein by reference to Exhibit 3.1 to the
Registration Statement on Form S-1 (Registration No. 2-72222) of
Registrant, filed May 11, 1981)
4.2 Certificate of Amendment of Articles of Incorporation of
Registrant dated as of September 12, 1984 (incorporated herein
by reference to Exhibit 4.0 to the Quarterly Report on Form 10-Q
of Registrant for the quarter ended August 26, 1984)
4.3 Certificate of Amendment of Articles of Incorporation of
Registrant dated as of September 29, 1988 (incorporated herein
by reference to Exhibit 3.2 to the Annual Report on Form 10-K of
Registrant for the Year Ended February 23, 1997)
4.4 Certificate of Amendment of the Articles of Incorporation of
Registrant dated June 25, 1992 (incorporated herein by reference
to Exhibit 10.71 to the Quarterly Report on Form 10-Q of
Registrant for the Quarter ended May 31, 1992)
4.5 Certificate of Amendment of the Articles of Incorporation of
Registrant dated October 16, 1998 (incorporated herein by
reference to Exhibit 3.6 to the Quarterly Report on Form 10-Q of
Registrant for the Quarter ended November 22, 1998)
4.8 Certificate of Determination of Rights and Preferences of Class
A Cumulative, Redeemable and Exchangeable Preferred Stock, Class
B Cumulative, Redeemable and Exchangeable Preferred Stock, Class
C Cumulative, Redeemable and Exchangeable Preferred Stock and
Voting Preferred Stock (incorporated herein by reference to
Exhibit 4 to the Form 8-K of Registrant dated August 7, 1998)
4.9 Certificate of Determination 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 and Class D Cumulative, Redeemable
and Exchangeable Preferred Stock (incorporated herein by
reference to Exhibit 4.9 to the Form 10-K of Registrant for the
transition period from February 23, 1998 to December 31, 1998)
4.10 Restated Bylaws of Registrant (incorporated herein by reference
to Exhibit 3.1 to the Form S-8 (Registration No. 333-20771)
filed January 31, 1997)
4.11 Amendment to Article III, Section 2, Section 3 and Section 4 and
Article IV, Section 1 to the Restated Bylaws of Registrant
(incorporated herein by reference to Exhibit 3.5 to the Form
10-Q of Registrant for the Quarter ended November 22, 1998)
5 Opinion of Allen, Matkins, Leck, Gamble & Mallory LLP
10.1 Alpha Microsystems 1998 Stock Option and Award Plan
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 4 of the Registration
Statement)