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As filed with the Securities and Exchange Commission on October 10, 1997
Registration Statement No. 333-_____
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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
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ALPHA-BETA TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2997834
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
THREE BIOTECH PARK
ONE INNOVATION DRIVE
WORCESTER, MA 01605
(Address of principal executive offices)
ALPHA-BETA TECHNOLOGY, INC.
1997 STOCK OPTION AND GRANT PLAN
(Full title of the Plan)
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SPIROS JAMAS
President and Chief Executive Officer
ALPHA-BETA TECHNOLOGY, INC.
Three Biotech Park
One Innovation Drive
Worcester, MA 01605
(Name and address of agent for service)
(508) 798-6900
(Telephone number, including area code, of agent for service)
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Copies to:
JOHN J. EGAN III, ESQ.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Proposed Maximum Amount of
Registered Registered (1) Share (2) Aggregate Offering Price Registration Fee
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Common Stock, 837,165 $2.984375 $2,498,414.30 $757.10
$0.01 par value
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(1) Plus such additional number of shares as may be required pursuant to the option plan in the event of a stock dividend,
stock split, split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) under the Securities Act of 1933, as amended, solely for
the purpose of determining the amount of the registration fee and is based solely upon the market value of outstanding
shares of the Company's common stock on October 8, 1997 utilizing the average of the high and low prices reported on the
Nasdaq National Market on that date.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
Alpha-Beta Technology, Inc. (the "Company") hereby incorporates by
reference the documents listed in (a) through (d) below, which have previously
been filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed with the Commission on March 28, 1997
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1997, filed with the Commission on May 14, 1997
pursuant to the Exchange Act;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1997, filed with the Commission on August 14, 1997
pursuant to the Exchange Act; and
(d) The description of the Company's common stock, par value $.01 per
share, contained in the Company's Registration Statement on Form
8-A, filed with the Commission on April 11, 1992 pursuant to Section
12 of the Exchange Act, as amended by Form 8-A/A filed with the
Commission on November 1, 1993.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of
the Exchange Act prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all 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.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated or 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 superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Massachusetts corporation. Reference is made to Chapter
156B, Section 13 of the Massachusetts Business Corporation Law (the "MBCL"),
which enables a corporation in its original articles of organization or an
amendment thereto to eliminate or limit the personal liability of a director 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 Sections
61 and 62 of the MBCL (providing for liability of directors for authorizing
unauthorized distributions and for making loans to directors, officers and
certain shareholders) or (iv) for any transaction from which a director derived
an improper personal benefit.
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Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request in
any capacity with respect to any employee benefit plan, to the extent specified
or authorized by the articles of organization, a by-law adopted by the
stockholders or a vote adopted by the holders of a majority of the shares of
stock entitled to vote on the election of directors. Such indemnification may
include payment by the corporation of expenses incurred in defending a civil or
criminal action or proceeding in advance of the final disposition of such action
or proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under Section 67 which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such indemnification may
be provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan. No
indemnification shall be provided, however, for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interest of the
participants or beneficiaries of such employee benefit plan.
Article VI of the Restated Articles of Organization of the Company
provides that, except under certain circumstances, directors of the Company
shall not be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duties as a director.
Article VI of the Restated Articles of Organization of the Company
provides for indemnification of the officers and directors of the Company to the
full extent permitted by applicable law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibit
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4.1 Alpha-Beta Technology, Inc. 1997 Stock Option and Grant Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered.
23.1 Consent of Counsel (included in Exhibit 5.1 hereto).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Power of Attorney (included in signature page of this Registration Statement).
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
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or high and of the estimated maximum offering range may
be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than
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) 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) herein
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the undersigned 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; and
(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 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 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 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, as amended,
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 Worcester, The Commonwealth of Massachusetts, on
October 10, 1997.
ALPHA-BETA TECHNOLOGY, INC.
By: /s/ Spiros Jamas
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Spiros Jamas,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Each person whose signature appears below constitutes and appoints Spiros
Jamas and D. Davidson Easson, Jr. and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities to sign any or all amendments
or post-effective amendments to this Registration Statement, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each of said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their substitutes, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
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/s/ Spiros Jamas President, Chief Executive Officer October 10, 1997
- ---------------------------- and Director (Principal Executive
Spiros Jamas Officer)
/s/ D. Davidson Easson, Jr. Executive Vice President, Treasurer, October 10, 1997
- ---------------------------- Chief Operating Officer and Director
D. Davidson Easson, Jr.
/s/ Gustav A. Christensen Chairman of the Board of Directors October 10, 1997
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Gustav A. Christensen
/s/ Bernard Canavan Director October 10, 1997
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Bernard Canavan
Director October __, 1997
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Lawrence C. Hoff
/s/ Michael E. Porter Director October 10, 1997
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Michael E. Porter
/s/ Peter H. Levine, M.D. Director October 10, 1997
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Peter H. Levine, M.D.
/s/ William Romeo Vice President of Finance October 10, 1997
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William Romeo
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EXHIBIT INDEX
Exhibit No. Description
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4.1 Alpha-Beta Technology, Inc. 1997 Stock Option and Grant Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as
to the legality of the securities being registered
23.1 Consent of Counsel (included in
Exhibit 5.1 hereto)
23.2 Consent of Arthur Andersen LLP, Independent
Public Accountants
24.1 Power of Attorney (included in signature page
of this Registration Statement)
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