As filed with the Securities and Exchange Commission on December 5, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AML COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 77-0130894
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
1000 AVENIDA ACASO
CAMARILLO, CALIFORNIA 93012
(Address of Principal Executive Offices) (Zip Code)
SECOND AMENDED AND RESTATED 1995 STOCK INCENTIVE PLAN
(Full Title of the Plan)
KIRK A. WALDRON
AML COMMUNICATIONS, INC.
1000 AVENIDA ACASO
CAMARILLO, CALIFORNIA 93012
(Name and Address of Agent for Service)
(805) 388-1345
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
PETER F. ZIEGLER, ESQ.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE(3)
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Common Stock, par value $0.01
per share. 500,000 $1.8125 $906,250 $239.25
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(1) These shares of Common Stock are reserved for issuance pursuant to the
Stock Incentive Plan of AML Communications, Inc. Pursuant to Rule 416(a),
there is also being registered such number of additional shares which may
become available for purchase pursuant to the foregoing Plan in the event
of certain changes in outstanding shares, including reorganizations,
recapitalizations, stock splits, stock dividends and reverse stock splits.
This Registration Statement does not include 1,096,586 shares available
under the Plan for which a registration statement on Form S-8 (Reg. No.
333-1520) was previously filed on February 21, 1996 or 403,414 shares
available under the Plan for which a registration statement on Form S-8
(Reg. No. 333-68097) was previously filed on November 30, 1998 and for
which a registration fee was previously paid.
(2) Estimated solely for the purpose of determining the registration fee.
(3) Calculated pursuant to Rule 457(c) based upon the average of the high
and low prices of the Common Stock on the Nasdaq National Market on
November 30, 2000 which was $1.8125.
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INTRODUCTION
This Registration Statement is being filed for the purpose of registering
additional securities of the same class as other securities for which two
registration statements on Form S-8 were filed with respect to the Stock
Incentive Plan of AML Communications, Inc. Pursuant to the general instruction E
of Form S-8, the Registration Statements on Form S-8 (Registration Nos. 333-1520
and 333-68097) filed on February 21, 1996 and November 30, 1998, respectively,
are hereby incorporated by reference.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 2000;
(ii) The Company's Quarterly Reports on Form 10-QSB for the fiscal
quarters ended June 30, 2000 and September 30, 2000;
(iii) The description of the Common Stock set forth under the heading
"Description of Capital Stock" in the Registrant's Registration Statement on
Form SB-2, as amended (Registration No. 33-99102-LA), together with any
amendment or report filed with the Commission for the purpose of updating such
description;
(iv) The Registrant's Registration Statement on Form S-8 (Registration
No. 333-1520) filed on February 21, 1996; and
(v) The Registrant's Registration Statement on Form S-8 (Registration
No. 333-68097) filed on November 30, 1998.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment hereto, 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 herein and to be a part hereof from the
date of filing of such documents.
For purposes of this Registration Statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified
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or superseded to the extent that a subsequently filed document or a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated herein by reference modifies or supersedes such
document or such statement in such document. Any 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.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors in terms
sufficiently broad to indemnify officers and directors of AML Communications,
Inc. ("AML") under certain circumstances from liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933.
AML's Charter and Bylaws and the indemnification agreements between AML and its
officers and directors provide, in effect, that, to the fullest extent and under
the circumstances permitted by Section 145 of the DGCL, AML will indemnify any
person 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, by reason of the fact that he is a
director or officer of AML or is or was serving at the request of AML as a
director or officer of another corporation or enterprise. AML may, in its
discretion, similarly indemnify its employees and agents. The Charter relieves
its directors from monetary damages to AML or its stockholders for breach of
such director's fiduciary duty as directors to the fullest extent permitted by
the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its
directors from personal liability to such corporation or its stockholders for
monetary damages for any breach of their fiduciary duty as directors except (i)
for a breach of the duty of loyalty, (ii) for failure to act in good faith,
(iii) for intentional misconduct or knowing violation of law, (iv) for willful
or negligent violation of certain provisions in the DGCL imposing certain
requirements with respect to stock repurchases, redemption and dividends, or (v)
for any transactions from which the director derived an improper personal
benefit. Depending upon the character of the proceeding, under Delaware law, AML
may indemnify against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
any action, suit or proceeding if the person indemnified acted in good faith and
in a manner he or she reasonably believed to be in or not opposed to the best
interest of the Company, and, with respect to any criminal action or proceeding,
had no cause to believe his or her conduct was unlawful. To the extent that a
director or officer of AML has been successful in the defense of any action,
suit or proceeding referred to above, AML will be obligated to indemnify him or
her against expenses (including attorneys' fees) actually and reasonably
incurred in connection therewith.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
The following exhibits are filed herewith:
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EXHIBIT NO. DESCRIPTION
3.1* Certificate of Incorporation (incorporated by reference
to the Exhibit from the Registrant's Registration
Statement on Form SB-2, Registration No. 33-99102)
3.2* Bylaws (incorporated by reference to the Exhibit from
the Registrant's Registration Statement on Form SB-2,
Registration No. 33-99102)
4.1 Second Amended and Restated 1995 Stock Incentive Plan
of AML Communications, Inc., as amended and restated on
July 26, 2000.
5.1 Legal Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (contained in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
24.1 Power of Attorney (contained on signature page hereto).
99.1* Form of Employee Nonqualified Stock Option Agreement
pursuant to Stock Incentive Plan (incorporated by
reference to Registrant's Registration Statement on
Form S-8, Registration No. 333-1520, filed on February
21, 1996)
99.2* Form of Incentive Stock Option Agreement pursuant to
Stock Incentive Plan (incorporated by reference to
Registrant's Registration Statement on Form S-8,
Registration No. 333-1520, filed on February 21, 1996)
99.3* Form of Nonemployee Director Stock Option Agreement
pursuant to Stock Incentive Plan (incorporated by
reference to exhibit 10.18 to Registrant's Quarterly
Report on Form 10-QSB for the quarter ended September
30, 1998).
* Incorporated by reference.
ITEM 9. UNDERTAKINGS.
(1) The undersigned Registrant hereby undertakes:
(a) 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 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 a 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 (1)(a)(i) and (1)(a)(ii) 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 Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) 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.
(c) 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.
(2) 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.
(3) 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 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 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 Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, there-unto duly
authorized, in the City of Camarillo, State of California, on this 5th day of
December, 2000.
AML COMMUNICATIONS, INC.
By: /s/ Kirk A. Waldron
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Kirk A. Waldron
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints Jacob
Inbar and Kirk A. Waldron, and each of them, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, severally, for him and in his 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 other documents in connection therewith, with the
Securities and Exchange 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 he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their or his 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
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Jacob Inbar
--------------------- Chairman of the Board and Director December 5, 2000
Jacob Inbar
/s/ Kirk A. Waldron
-------------------- President, Chief Executive Officer December 5, 2000
Kirk A. Waldron and Director (Principal Executive
Officer)
/s/ Scott T. Behan
-------------------- Secretary, Executive Vice December 5, 2000
Scott T. Behan President - Engineering
/s/ Kevin Pietramala
--------------------- Vice President - Sales and Marketing December 5, 2000
Kevin Pietramala
/s/ Karl R. Brier
--------------------- Chief Financial Officer and December 5, 2000
Karl R. Brier Treasurer (Principal Financial
Officer)
/s/ David A. Swoish
--------------------- Controller December 5, 2000
David A. Swoish
/s/ David A. Derby
--------------------- Director December 5, 2000
David A. Derby
/s/ Richard W. Flatow
--------------------- Director December 5, 2000
Richard W. Flatow
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SIGNATURE TITLE DATE
/s/ Gerald M. Starek
--------------------- Director December 5, 2000
Gerald M. Starek
/s/ Fred M. Sturm
--------------------- Director December 5, 2000
Fred M. Sturm
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
3.1* Certificate of Incorporation (incorporated by reference
to the Exhibit from the Registrant's Registration Statement
on Form SB-2, Registration No. 33-99102)
3.2* Bylaws (incorporated by reference to the Exhibit from the
Registrant's Registration Statement on Form SB-2,
Registration No. 33-99102)
4.1 Second Amended and Restated 1995 Stock Incentive Plan of
AML Communications, Inc., as amended and restated on July
26, 2000.
5.1 Legal Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP (contained in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
24.1 Power of Attorney (contained on signature page hereto).
99.1* Form of Employee Nonqualified Stock Option Agreement
pursuant to Stock Incentive Plan (incorporated by reference
to Registrant's Registration Statement on Form S-8,
Registration No. 333-1520, filed on February 21, 1996)
99.2* Form of Incentive Stock Option Agreement pursuant to
Stock Incentive Plan (incorporated by reference to
Registrant's Registration Statement on Form S-8,
Registration No. 333-1520, filed on February 21, 1996)
99.3* Form of Nonemployee Director Stock Option Agreement
pursuant to Stock Incentive Plan (incorporated by reference
to exhibit 10.18 to Registrant's Quarterly Report on Form
10-QSB for the quarter ended September 30, 1998).
* Incorporated by reference.
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