SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALYN CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
33-0709359
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(I.R.S. employer identification no.)
16761 Hale Avenue, Irvine, California 92606
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(Address of principal executive offices) (Zip code)
1996 Stock Incentive Plan
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(Full title of the plan)
Robin A. Carden
President and Chief Executive Officer
Alyn Corporation
16761 Hale Avenue
Irvine, California 92606
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(Name and address of agent for service)
(714) 475-1525
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering price aggregate registration
to be registered registered per share offering price fee
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<S> <C> <C> <C> <C> <C> <C>
Common Stock, $.001 par 1,000,000 $14.13 (1) $14,130,000 $4,281.82
value per share
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</TABLE>
(1) Represents shares to be offered at prices not presently determinable.
Pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act
of 1933, as amended, the proposed maximum offering price for such
1,000,000 shares is estimated solely for the purpose of determining the
registration fee and is based on the average of the high and low sales
prices per share of the registrant's Common Stock reported on The
Nasdaq Stock Market, Inc. National Market on October 23, 1997.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in this Item will be
sent or given to employees or directors who have been awarded options under the
Alyn Corporation 1996 Stock Incentive Plan (the "Plan"), and are not being filed
with, or included in, this Registration Statement on Form S-8 (the "Registration
Statement"), in accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information
The documents containing the information specified in this Item will be
sent or given to employees or directors who have been awarded options under the
Plan and are not being filed with, or included in, this Registration Statement,
in accordance with the rules and regulations of the Commission.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents which heretofore have been filed with the
Commission by ALYN CORPORATION, a Delaware corporation (the "Company" or
"Registrant"), are incorporated by reference in this Registration Statement.
(a) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A filed with the Commission on October 21, 1996
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which incorporates by reference the description of the
Common Stock contained in the Registration Statement on Form S-1 filed by the
Registrant with the Commission (File Number 333-09143), and any amendment or
report filed with the Commission for purposes of updating such description;
(b) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997;
(d) The Registrant's Interim Report on Form 8-K filed on June 27,
1997; and
(e) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the filing of a post-effective amendment, which indicates
that all securities offered have been sold or which deregisters all such
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. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such
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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
As permitted by the Delaware General Corporation Law ("DGCL"), the
Company's Certificate of Incorporation (the "Certificate") provides that no
director shall be personally liable to the Company or any stockholder for
monetary damages for breach of fiduciary duty as a director, except for
liability: (i) arising from payment of dividends or approval of a stock purchase
in violation of Section 174 of the DGCL; (ii) for any breach of the duty of
loyalty to the Company or its stockholders; (iii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; or (iv) for any transaction from which the director derived an improper
personal benefit. While the Certificate provides protection from awards for
monetary damages for breaches of the duty of care, it does not eliminate the
director's duty of care. Accordingly, the Certificate will not affect the
availability of equitable remedies, such as an injunction, based on a director's
breach of the duty of care. The provisions of the Certificate described above
apply to officers of the Company only if they are directors of the Company and
are acting in their capacity as directors, and does not apply to officers of the
Company who are not directors.
In addition, the Company's By-Laws provide that the Company shall
indemnify its officers and directors, and any employee who serves as an officer
or director of any corporation at the Company's request, to the fullest extent
permitted under and in accordance with the DGCL. Under the DGCL, directors and
officers as well as employees and individuals may be indemnified against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement in connection with specified actions, suits or proceedings, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation as a derivative action) if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe their conduct was unlawful.
Reference is made to Section 8 of the Underwriting Agreement (Exhibit
1.1 to the Registration Statement on Form S-1), which provides for
indemnification of the Company's officers, directors and controlling persons by
the Underwriters against certain civil liabilities, including certain
liabilities under the Securities Act.
The Company has obtained a director and officer liability
insurance policy, under which each director and certain officers of the Company
would be insured against certain liabilities.
Item 7. Exemption From Registration Claimed
Not applicable.
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<PAGE>
Item 8. Exhibits
4.1* 1996 Stock Incentive Plan.
5 Opinion of Battle Fowler LLP regarding the legality of the
securities being registered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Battle Fowler LLP (included in Exhibit 5 hereto).
24 Power of Attorney (included in the signature pages to this
Registration Statement).
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* Incorporated herein by reference from the Company's Registration Statement
on Form S-1, filed by the Registrant with the Commission (File Number
333-09143) and declared effective by the Commission on October 22, 1996.
Item 9. Undertakings
(a) The 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 this Registration Statement or any material change to such
information in this 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 hereby which remain unsold at
the termination of the offering.
(b) The 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 this 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 Registrant of expenses
incurred or paid by a
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<PAGE>
director, officer or controlling person of 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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<PAGE>
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 Irvine, State of California, on this 24th day of
October, 1997.
ALYN CORPORATION
By: /s/ Robin A. Carden
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Robin A. Carden
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robin A. Carden and Walter R. Menetrey,
and each of them, his true and lawful attorney-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
to this Registration Statement, including post-effective amendments, 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 full power and authority to do and perform each and
every act and thing necessary or desirable to be done, as fully to all intents
and purposes as he might or could do in person, and hereby ratifies and confirms
all his said attorneys-in-fact and agents, each acting alone, 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 date indicated.
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<CAPTION>
Name Title Date
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<S> <C> <C>
/s/Robin A. Carden President, Chief Executive Officer and October 24, 1997
- ------------------ Director
Robin A. Carden (Principal Executive Officer)
/s/Richard L. Little Vice President, Finance and October 23, 1997
- -------------------- Administration
Richard L. Little (Principal Financial and Accounting
Officer)
/s/Harry Edelson Director October 21, 1997
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Harry Edelson
/s/Michael Markbreiter Director October 22, 1997
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Michael Markbreiter
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<PAGE>
Name Title Date
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/s/Walter R. Menetrey Director October 24, 1997
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Walter R. Menetrey
/s/Udi Toledano Director October 23, 1997
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Udi Toledano
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit Page Number
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4.1* 1996 Stock Incentive Plan.
5 Opinion of Battle Fowler LLP regarding the
legality of the securities being
registered. 8
23.1 Consent of Price Waterhouse LLP. 10
23.2 Consent of Battle Fowler LLP (included in
Exhibit 5 hereto).
24 Power of Attorney (included in the
signature pages to this Registration
Statement).
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* Incorporated herein by reference from the Company's Registration Statement
on Form S-1, filed by the Registrant with the Commission (File Number
333-09143) and declared effective by the Commission on October 22, 1996.
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BATTLE FOWLER LLP
A LIMITED LIABILITY PARTNERSHIP
75 East 55th Street
New York, New York 10022
(212) 856-7000
Exhibit 5
(212) 856-7000
(212) 339-9150
October 22, 1997
Alyn Corporation
16761 Hale Avenue
Irvine, CA 92606
Re: Alyn Corporation
Registration of the 1996 Stock Incentive Plan on Form S-8
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Ladies and Gentlemen:
We have acted as counsel for Alyn Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing of a
registration statement on Form S-8 (the "S-8 Registration Statement"), pursuant
to which the Company proposes to offer and sell up to an aggregate of 1,000,000
shares ("Option Shares") of its Common Stock, par value $0.01 per share ("Common
Stock"). You have requested that we furnish our opinion as to the matters
hereinafter set forth.
In this connection we have examined a copy of (i) the Restated
Certificate of Incorporation of the Company; (ii) the By-Laws of the Company;
(iii) the minute books of the Company, including the resolutions of the Board of
Directors of the Company (the "Board"), dated July 15, 1996, reserving the
Option Shares; (iv) the 1996 Stock Incentive Plan (the "Plan"); and (v) the S-8
Registration Statement.
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<PAGE>
2
Alyn Corporation October 22, 1997
In rendering the opinion herein expressed we have assumed the
genuineness of all signatures, the authenticity of all original documents,
instruments and certificates examined by us, the conformity with the original
documents, instruments and certificates of all copies of documents, instruments
and certificates examined by us and the legal capacity to sign of all
individuals executing documents. We have relied upon the written representations
of the Company as to the accuracy and completeness of (1) the By-Laws of the
Company; (2) the Plan; (3) the S-8 Registration Statement; and (4) the minute
books of the Company. We also have relied upon the written representations of
the Company that (1) the resolutions of the Board, dated July 15, 1996,
reserving the Option Shares and (2) the By-Laws of the Company have not been
amended or revoked.
We are not admitted to the practice of law in any jurisdiction
but the State of New York, and we do not express any opinion as to the laws of
other states or jurisdictions other than the laws of the State of New York, the
federal law of the United States and the General Corporation Law of the State of
Delaware. No opinion is expressed as to the effect that the law of any other
jurisdiction may have upon the subject matter of the opinion expressed herein
under conflicts of law principles, rules and regulations or otherwise.
Based upon and subject to the foregoing, we are of the opinion
that all of the Option Shares have been duly authorized for issuance and when
(i) the S-8 Registration Statement shall have become effective, (ii) the Option
Shares shall have been issued in the proposed form, and (iii) the Option Shares
shall have been issued and delivered against payment therefor as contemplated by
the Plan, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the S-8 Registration Statement.
Very truly yours,
/s/ BATTLE FOWLER LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated February 20,
1997 appearing on page F-2 of Alyn Corporation's Annual Report on Form
10-K for the year ended December 31, 1996.
/s/PRICE WATERHOUSE LLP
Costa Mesa, California
October 21, 1997
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