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As filed with the Securities and Exchange Commission on January 14, 2000
Registration No. 333-80037
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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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ALTIGEN COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
Delaware 3661 94-3204299
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
ALTIGEN COMMUNICATIONS, INC.
47427 Fremont Boulevard
Fremont, California 94538
(510) 252-9712
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
1994 STOCK OPTION PLAN
1999 STOCK OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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Gilbert Hu
Chief Executive Officer
ALTIGEN COMMUNICATIONS, INC.
47427 Fremont Boulevard
Fremont, California 94538
(510) 252-9712
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Carmen Chang, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
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, check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed
Maximum Proposed
Amount Offering Maximum
Title of Each Class of Securities to to be Price Aggregate Amount of
Be Registered Registered Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
1994 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) (1) 1,524,147 shares $ 1.0478 $ 1,597,027.90 $ 421.62
- ------------------------------------------------------------------------------------------------------------------
1999 Stock Option Plan
Common Stock, $0.001 par value
(currently outstanding options) (2) 1,406,182 shares $11.0026 $15,471,606.67 $4,084.50
- ------------------------------------------------------------------------------------------------------------------
1999 Stock Option Plan
Common Stock, $0.001 par value
(options available for future grant) (3) 690,064 shares $12.2500 $ 8,453,284.00 $2,231.67
- ------------------------------------------------------------------------------------------------------------------
Total of 1999 Stock Option Plan shares registered 2,096,246 shares $23,924,890.67 $6,316.17
- ------------------------------------------------------------------------------------------------------------------
1999 Employee Stock Purchase Plan
Common Stock, $0.001 par value (4) 500,000 shares $10.4125 $ 5,206,250.00 $1,374.45
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TOTAL REGISTRATION FEES $8,112.24
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(1) The computation is based upon the weighted average exercise price per share
of approximately $1.0478 as to 1,524,147 outstanding but unexercised
options to purchase Common Stock under the 1994 Stock Option Plan (the
"Currently Outstanding Options under the 1994 Stock Option Plan"). The
Maximum Offering Price Per Share is approximate because the Currently
Outstanding Options under the 1994 Stock Option Plan were subject to a
reverse-split of the Common Stock of the Registrant in August 1999.
Accordingly, while the number of shares underlying the Currently
Outstanding Options are adjusted to reflect the reverse-split, the Maximum
Aggregate Offering Price payable for such shares is fixed pursuant to the
pre-split terms of each option. No further grants will be made under the
1994 Stock Option Plan.
(2) The computation is based upon the weighted average exercise price per share
of approximately $11.0026 as to 1,406,182 outstanding but unexercised
options to purchase Common Stock under the 1999 Stock Option Plan (the
"Currently Outstanding Options under the 1999 Stock Option Plan"). The
Maximum Offering Price Per Share is approximate because certain Currently
Outstanding Options under the 1999 Stock Option Plan were subject to a
reverse-split of the Common Stock of the Registrant in August 1999.
Accordingly, while the number of shares underlying the Currently
Outstanding Options under the 1999 Stock Option Plan are adjusted to
reflect the reverse-split, the Maximum Aggregate Offering Price payable for
such shares is fixed pursuant to the pre-split terms of each option.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 690,064 shares of Common Stock authorized for issuance pursuant
to the 1999 Stock Option Plan, solely for the purpose of calculating the
registration fee. No options have been granted with respect to such
shares. The computation is based upon the average of the high and low
price of the Common Stock as reported on the Nasdaq National Market on
January 10, 2000 because the price at which the options to be granted in
the future may be exercised is not currently determinable.
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
January 10, 2000 because the price at which the securities to be granted in
the future may be exercised is not currently determinable. Pursuant to the
Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
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The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K (Commission file no. 000-
27427), filed on December 29, 1999 and the Registrant's Amendment No.
1 to the Annual Report on Form 10-K/A filed on January 5, 2000.
(b) The description of the Common Stock of the Registrant that is
contained in the Registration Statement on Form 8-A filed pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on September 22, 1999.
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing 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 the Registration
Statement and to be part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under Section 145 of the Delaware General Corporation Law, the Registrant
can indemnify its directors and officers against liabilities they may incur in
such capacities, including liabilities under the Securities Act of 1933, as
amended (the "Securities Act"). The Registrant's bylaws provide that it will
indemnify its directors and officers to the fullest extent permitted by law.
The Registrant's certificate of incorporation provides that, pursuant to
Delaware law, its directors shall not be liable for monetary damages for breach
of the directors' fiduciary duty of care to the Registrant and its stockholders.
This provision in the certificate of incorporation does not eliminate the duty
of care, and in appropriate circumstances equitable remedies such as injunctive
or other forms of non-monetary relief will remain available under Delaware law.
In addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to the Registrant or its stockholders, for
acts or omissions not in good faith or involving intentional misconduct or
knowing violations of law, for actions leading to improper personal benefit to
the director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
In addition, the Registrant has entered or will enter into agreements to
indemnify its directors and certain officers in addition to the indemnification
provided for in the certificate of incorporation and bylaws. These agreements
will, among other things, indemnify the Registrant's directors and certain
officers for certain expenses (including attorneys' fees), judgments, fines and
settlement amounts incurred by such person
II-1
<PAGE>
in any action or proceeding, including any action by or in the Registrant's
right, on account of services by that person as a director or officer of the
Registrant or as a director or officer of any subsidiary of the Registrant, or
as a director or officer of any other company or enterprise that the person
provides services to at the request of the Registrant.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
Item 9. Undertakings.
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(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 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.
(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 (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 an 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 Fremont, State of California on January 14, 2000.
ALTIGEN COMMUNICATIONS, INC.
By: /s/ Gilbert Hu
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Gilbert Hu
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gilbert Hu and Philip McDermott, jointly
and severally, his attorneys-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------- -------------------------------------------- --------------------
<S> <C> <C>
/s/ Gilbert Hu Chief Executive Officer (principal
- ----------------------------
Gilbert Hu executive officer) and Director1 January 14, 2000
/s/ Philip McDermott
- ---------------------------- Chief Financial Officer (principal
Philip McDermott financial and accounting officer) January 14, 2000
/s/ Wen-Huang Chang
- ----------------------------
Wen-Huang Chang Director/1/ January 14, 2000
/s/ Thomas Shao
- ----------------------------
Thomas Shao Director/1/ January 14, 2000
/s/ Masaharu Shinya
- -----------------------------
Masaharu Shinya Director/1/ January 14, 2000
/s/ Kenneth Tai
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Kenneth Tai Director/1/ January 14, 2000
/s/ Richard Black
- -----------------------------
Richard Black Director/1/ January 14, 2000
</TABLE>
/1/ The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
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INDEX TO EXHIBITS
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<CAPTION>
Sequentially
Exhibit Number Exhibit Document Numbered Page
- ---------------------------- ---------------------------------------------------------------- ------------------
<S> <C> <C>
4.1* Certificate of Incorporation of Registrant
4.2* Bylaws of Registrant
4.3* 1994 Stock Option Plan
4.4* 1999 Stock Option Plan
4.5* 1999 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being registered
(Counsel to the Registrant)
23.1 Consent of Arthur Andersen LLP (Independent Public Accountants)
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page II-3)
</TABLE>
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* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 333-80037), effective October 4, 1999.
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
Exhibit 5.1
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January 14, 2000
AltiGen Communications, Inc.
47427 Fremont Boulevard
Fremont, CA 94538
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on January 14, 2000 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1994 Stock Option Plan (as to
1,524,147 shares), of the 1999 Stock Plan (as to 2,096,246 shares) and of the
1999 Employee Stock Purchase Plan (as to 500,000 shares) (collectively, the
"Plans" and the "Shares" as appropriate). As legal counsel for AltiGen
Communications, Inc., we have examined the proceedings taken and are familiar
with the proceedings proposed to be taken by you in connection with the issuance
and sale of the Shares pursuant to the Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and validly issued, fully-paid and non-
assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE>
Exhibit 23.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement on form S-8 of our reports dated
October 28, 1999 included in AltiGen Communications, Inc.'s Annual Report on
Form 10-K and Amendment No. 1 to the Annual Report on Form 10-K/A for the year
ended September 30, 1999.
/s/ ARTHUR ANDERSON LLP
San Jose, CA
January 12, 2000
