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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE AMERICAN MATERIALS AND TECHNOLOGIES CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
33-0659916
(I.R.S. Employer Identification No.)
5915 RODEO ROAD, LOS ANGELES, CALIFORNIA 90016
(Address of Principal Executive Offices) (Zip Code)
THE AMERICAN MATERIALS AND TECHNOLOGIES CORPORATION
1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
THE AMERICAN MATERIALS AND TECHNOLOGIES CORPORATION
1997 STOCK OPTION PLAN
(Full Title of the Plans)
PAUL W. PENDORF
President and Chief Executive Officer
The American Materials and Technologies Corporation
5915 Rodeo Road
Los Angeles, California 90016
(Name and Address of Agent for Service)
(310) 841-5200
(Telephone Number, Including Area Code, of Agent For Service)
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Copies to:
David A. Broadwin, Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 345,300 shares $4.81(1) $1,660,893(1) $489.97(1)
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Common Stock, $.01 par value 349,313 shares $4.68(2) $1,634,785(2) $482.27(2)
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Common Stock, $.01 par value 4,700 shares $2.69(3) $ 12,643(3) $ 3.73(3)
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Common Stock, $.01 par value 687 shares $2.69(4) $ 1,849(4) $ 0.55(4)
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Totals 700,000 shares $3,310,170 $976.52
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(1) For shares issuable pursuant to the exercise of stock options granted under
The American Materials and Technologies Corporation's 1996 Incentive and
Nonqualified Stock Option Plan (the "1996 Plan"), outstanding at December
2, 1997, estimated pursuant to Rule 457(h) based on the weighted average of
the exercise prices of such options.
(2) For shares issuable pursuant to the exercise of stock options granted under
The American Materials and Technologies Corporation's 1997 Stock Option
Plan (the "1997 Plan"), outstanding at December 2, 1997, estimated pursuant
to Rule 457(h) based on the weighted average of the exercise prices of such
options.
(3) For shares issuable pursuant to the exercise of stock options that may be
granted under the 1996 Plan but are not yet granted at December 2, 1997,
estimated pursuant to Rule 457(c) based on the average of the high and low
prices of the Common Stock as reported on the Nasdaq Stock Market, Inc.
on December 2, 1997.
(4) For shares issuable pursuant to the exercise of stock options that may be
granted under the 1997 Plan but are not yet granted at December 2, 1997,
estimated pursuant to Rule 457(c) based on the average of the high and low
prices of the Common Stock as reported on the Nasdaq Stock Market, Inc.
on December 2, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1996;
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997;
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on June 17, 1996
under Section 12 of the Securities Exchange Act of 1934, including any amendment
or description filed for the purpose of updating such description; and
(d) All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law affords a Delaware
corporation the power to indemnify its present and former directors and officers
under certain conditions. Section 10 of the Company's Amended and Restated
By-Laws (the "Restated By-Laws") provides that the Company shall indemnify each
person who is or was a party, or is threatened to be made a party to, any
threatened, pending or completed action, suit, proceeding or claim, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person is or was or has agreed to be, a director or officer of the Company,
or while a director or officer is or was serving at the request of the Company
as a director, officer, partner, employee, trustee, or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, against expenses (including
attorneys' fees and expenses), judgments, fines and amounts paid in settlement
incurred in connection with the investigation, preparation to defend or defense
of any such action, suit, proceeding or claim to the maximum extent permitted by
the law of the State of Delaware. The Company is not required to indemnify or
advance expenses to any director or officer in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person.
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Section 10 of the Restated By-Laws provides that the right of
indemnification provided thereby will not be exclusive of any other
indemnification rights arising under any by-law, agreement, vote of directors or
stockholders or otherwise. The Company has entered into indemnification
agreements with each of the current directors of the Company substantially in
the form of the indemnification agreement filed as an exhibit to the Company's
Annual Report on Form 10-KSB for the fiscal year ended December 31, 1996 and
such form of agreement is incorporated herein by reference.
The right to indemnification contained in Section 10 of the Restated
By-Laws includes the right to be paid by the Company the expenses (including
attorneys' fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, if the General Corporation Law of the
State of Delaware (the "DGCL") requires, an advancement of this nature incurred
by an indemnified party only in his or her capacity as a director or officer of
the Company, shall be made only on receipt by the Company of an undertaking, by
or on behalf of such director or officer, to repay all advanced amounts if it
shall be ultimately determined that such director or officer is not entitled to
be indemnified for such expenses.
The effect of these indemnification provisions could be to permit
indemnification by the Company for, among other liabilities, liabilities arising
out of the Securities Act of 1933.
Section 102(b)(7) of the DGCL gives a Delaware corporation the power to
adopt a charter provision eliminating or limiting the personal liability of
directors to the corporation or its stockholders for breach of fiduciary duty as
directors, provided that such provision may not eliminate or limit the liability
of directors for (i) any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) any acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) any
payment of a dividend or approval of a stock purchase that is illegal under
Section 174 of the DGCL or (iv) any transaction from which the director derived
an improper personal benefit. Article SIXTH of the Company's Restated
Certificate of Incorporation, as amended (the "Restated Charter") provides that
to the maximum extent permitted by the DGCL, no director of the Company shall be
personally liable to the Company or to any of its stockholders for monetary
damages arising out of such director's breach of fiduciary duty as a director of
the Company. The Restated Charter further provides that any amendment to or
repeal of the provisions of Article SIXTH or adoption of any provision
inconsistent therewith will not apply to nor have any effect on the liability or
the alleged liability of any director of the Company with respect to any act or
failure to act of such director occurring prior to such amendment or repeal. A
principal effect of Article SIXTH is to limit or eliminate the potential
liability of the Company's directors for monetary damages arising from breaches
of their duty of care, unless the breach involves one of the four exceptions
described in (i) through (iv) above.
Section 145 of DGCL gives a Delaware corporation the power to obtain
insurance on behalf of its directors and officers against liabilities incurred
by them in those capacities. The Company has procured a directors' and officers'
liability insurance policy that (a) insures directors and officers of the
Company against losses (above a deductible amount) arising from certain claims
made against them by reason of certain acts done or attempted by such directors
or officers and (b) insures the Company against losses (above a deductible
amount) arising from any such claims, but only if the Company is required or
permitted by law to indemnify such directors or officers for such losses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
4.1* Specimen certificate for the Common Stock
5.1 Opinion of Foley, Hoag & Eliot LLP
10.1* The American Materials and Technologies Corporation 1996 Incentive and
Nonqualified Stock Option Plan
10.2** The American Materials and Technologies Corporation 1997 Stock Option
Plan
23.1 Consent of Feldman Radin & Co., P.C.
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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* Filed as an exhibit to the Company's Registration Statement on Form SB-2
(file number 333-3836), as declared effective by the Commission on June 27,
1996 and incorporated herein by reference.
** Filed as an appendix to the Company's Definitive Proxy Statement (file
number 001-11835), as filed with the Commission on April 28, 1997 and
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
1. The undersigned 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 of 1933;
(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;
(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 2 (a)(1)(i) and 2 (a)(1)(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 Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(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. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN LOS ANGELES, CALIFORNIA, ON DECEMBER
9, 1997.
THE AMERICAN MATERIALS AND
TECHNOLOGIES CORPORATION
By:/s/ Paul W. Pendorf
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Paul W. Pendorf
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Paul W. Pendorf and James L. Russell, and each of
them, true and lawful attorneys-in-fact and agents with full power of
substitution, for and in 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 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 which they, or any
of them, may deem necessary or advisable to be done in connection with this
Registration Statement, 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 any substitute or substitutes
for him, any or all of them, 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 BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
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Signature Title Date
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/s/ Paul W. Pendorf President, Chief Executive Officer and December 9, 1997
- -------------------------------------- Director (Principal Executive Officer)
PAUL W. PENDORF
/s/ James L. Russell Chief Financial Officer December 9, 1997
- -------------------------------------- (Principal Financial and Accounting Officer)
JAMES L. RUSSELL
/s/ Steven Georgiev Director December 9, 1997
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STEVEN GEORGIEV
/s/ Buster C. Glosson Director December 9, 1997
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BUSTER C. GLOSSON
/s/ Robert V. Glaser Director December 9, 1997
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ROBERT V. GLASER
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EXHIBIT INDEX
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Exhibit No. Description
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4.1* Specimen certificate for the Common Stock
5.1 Opinion of Foley, Hoag & Eliot LLP
10.1* The American Materials & Technologies Corporation 1996 Incentive and Nonqualified Stock
Option Plan
10.2** The American Materials and Technologies Corporation 1997 Stock Option Plan
23.1 Consent of Feldman Radin & Co., P.C.
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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* Filed as an exhibit to the Company's Registration Statement on Form SB-2
(file number 333-3836), as declared effective by the Commission on June 27,
1996 and incorporated herein by reference.
** Filed as an appendix to the Company's Definitive Proxy Statement (file
number 001-11835), as filed with the Commission on April 28, 1997 and
incorporated herein by reference.
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[FOLEY, HOAG & ELIOT LLP LETTERHEAD]
Exhibit 5.1
December 9, 1997
The American Materials and Technologies Corporation
5915 Rodeo Road
Los Angeles, CA 90016
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 (the "S-8
Registration Statement") filed today with the Securities and Exchange Commission
by The American Materials and Technologies Corporation, a Delaware corporation
(the "Company") relating to 700,000 shares of the Company's common stock $0.01
par value per share (the "Common Stock") issuable pursuant to the Company's 1996
Incentive and Nonqualified Stock Option Plan and the Company's 1997 Stock Option
Plan (collectively, the "Plans").
We are familiar with the Company's Restated Certificate of Incorporation,
its Amended and Restated By-Laws, the records of all meetings and consents of
its Board of Directors and of its stockholders, and its stock records. We have
examined such other records and documents as we deemed necessary or appropriate
for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that:
With respect to the Common Stock (a) the Company has corporate power
adequate for the issuance of such Common Stock to be issued pursuant to the
Plans, (b) the Company has taken all necessary corporate action required to
authorize the issuance and sale of such Common Stock and (c) when
certificates for such Common Stock have been duly executed and
countersigned, and delivered against due receipt of the exercise price for
such Common Stock as described in the Plans, such Common Stock will be
validly and legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as part of the S-8
Registration Statement.
Very truly yours,
FOLEY, HOAG & ELIOT LLP
By: /s/ David A. Broadwin
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A Partner
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The American Materials and Technologies Corporation on Form S-8 of our report
for the year ended December 31, 1996, dated March 26, 1997 appearing in The
American Materials and Technologies Corporation's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1996.
/s/ FELDMAN RADIN & CO., P.C.
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FELDMAN RADIN & CO., P.C.
New York, New York
November 25, 1997
