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As filed with the Securities and Exchange Commission on July 3, 2000
Registration 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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AVOCENT CORPORATION
(Exact name of Registrant as specified in its charter)
4991 CORPORATE DRIVE
HUNTSVILLE, ALABAMA 35805
DELAWARE (256) 430-4000 91-2032368
(State of incorporation) (Address of principal (I.R.S. Employer
executive offices) Identification Number)
APEX INC. EMPLOYEE STOCK PLAN
APEX INC. EMPLOYEE STOCK PURCHASE PLAN
CYBEX COMPUTER PRODUCTS CORPORATION 1998 EMPLOYEE STOCK INCENTIVE PLAN
CYBEX COMPUTER PRODUCTS CORPORATION 1995 EMPLOYEE STOCK OPTION PLAN
CYBEX COMPUTER PRODUCTS CORPORATION 1995 OUTSIDE DIRECTORS STOCK OPTION PLAN
(Full title of the plans)
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SAMUEL F. SARACINO, ESQ.
SENIOR VICE PRESIDENT, LEGAL AND CORPORATE AFFAIRS,
GENERAL COUNSEL AND SECRETARY
9911 WILLOWS ROAD N.E.
REDMOND, WASHINGTON 98052
(425) 861-5858
(Name, address, and telephone number of agent for service)
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COPY TO:
PATRICK J. SCHULTHEIS, ESQ.
WILSON SONSINI GOODRICH & ROSATI,
PROFESSIONAL CORPORATION
5300 CARILLON POINT
KIRKLAND, WASHINGTON 98033
(425) 576-5800
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
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<S> <C> <C> <C> <C>
Common Stock ($0.001 par value) issuable under:
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Apex Inc. Employee Stock Plan 3,168,065 shares $ 12.1361 $38,447,953.65 $10,150
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Apex Inc. Employee Stock Purchase Plan 5,452 shares $ 24.2091 $ 131,988.01 $ 35
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Cybex Computer Products Corporation 1998 1,168,224 shares $ 19.8000 $23,130,835.20 $ 6,107
Employee Stock Incentive Plan
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Cybex Computer Products Corporation 1995 1,157,582 shares $ 7.6800 $ 8,890,229.76 $ 2,347
Employee Stock Option Plan
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Cybex Computer Products Corporation 1995 Outside 37,499 shares $ 14.3800 $ 539,235.62 $ 142
Directors Stock Option Plan
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TOTAL 5,536,822 shares $71,140,266.45 $18,781
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(1) Represents shares of Common Stock issuable upon exercise of stock options
granted pursuant to each plan listed. In connection with the combination of
Apex Inc. and Cybex Computer Products Corporation, the Registrant has
assumed the obligation to issue shares of Common Stock upon exercise of the
stock options issued under each plan listed.
(2) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act of 1933, as amended, solely for the purpose of computing the amount of
the registration fee based on the weighted average exercise price covering
authorized but unissued shares under each plan listed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Avocent Corporation, formerly known as Aegean Sea Inc., ("Avocent") hereby
incorporates by reference in this registration statement the following documents
which were previously filed with the Securities and Exchange Commission:
(a) Avocent's Registration Statement on Form S-4 (No. 333-33768) filed
March 31, 2000, as amended.
(b) The description of Avocent's Common Stock contained in its
Registration Statement on Form 8-A, filed May 9, 2000 pursuant to
Section 12(g) of the Securities Exchange Act of 1934.
All documents subsequently filed by Avocent 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 to this registration statement which indicates
that all securities offered hereby have been sold or which deregisters all
securities 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.
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 permits a corporation
to include in its charter documents and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by current law.
Article XI of Avocent's Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
General Corporation law.
Article VI of Avocent's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the corporation to the
fullest extent permissible under the Delaware General Corporation Law.
Avocent has entered into indemnification agreements with its directors and
executive officers, in addition to the indemnification provided for in Avocent's
Certificate of Incorporation and Bylaws, and intends to enter into
indemnification agreements with any new directors and executive officers in the
future.
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In addition, pursuant to the terms of the Agreement and Plan of
Reorganization by and among Avocent, Apex Inc., a Washington corporation and
Cybex Computer Products Corporation, an Alabama corporation, dated as of March
8, 2000, Avocent has agreed to fulfill and honor in all respects the obligations
of Apex and Cybex pursuant to any indemnification agreements between Apex and
Cybex and their directors and officers as of March 8, 2000 and any
indemnification provisions under Apex's and Cybex's Articles of Incorporation or
Bylaws as in effect immediately prior to the merger. In connection with the
reorganization, Apex and Cybex each became a wholly-owned subsidiary of Avocent
by merging with wholly-owned subsidiaries of Avocent. The Articles of
Incorporation and Bylaws of these wholly-owned subsidiaries contain provisions
with respect to exculpation and indemnification that are at least as favorable
to the parties to the indemnification agreements as those contained in the
Articles of Incorporation and Bylaws of Apex and Cybex, respectively, as in
effect immediately prior to the merger. The provisions will not be amended,
repealed or otherwise modified for a period of six years from March 8, 2000 in
any manner that would adversely affect the rights thereunder of individuals who,
immediately prior to March 8, 2000, were directors, officers, employees or
agents of Apex and Cybex, respectively, unless such modification is required by
law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling Avocent
pursuant to the foregoing provisions, Avocent has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.1 Certificate of Incorporation of Avocent (incorporated by
reference to Exhibit 3.1 of Avocent's Registration Statement on
Form S-4, No. 333-33768)
4.2 Bylaws of Avocent (incorporated by reference to Exhibit 3.2 of
Avocent's Registration Statement on Form S-4, No. 333-33768)
4.3 Employee Stock Plan (incorporated by reference to Exhibit No.
10.9 to Registration Statement on Form SB-2 No. 333-17753 of Apex
Inc.)
4.4 Form of Nonstatutory Stock Option Letter Agreement related to
Employee Stock Plan (incorporated by reference to Exhibit No.
10.10 to Registration Statement on Form SB-2 No. 333-17753 of
Apex Inc.)
4.5 1995 Employee Stock Option Plan (incorporated by reference to
Exhibit No. 10.3 to Registration Statement No. 33-93124 of Cybex
Computer Products Corporation)
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EXHIBIT
NUMBER DESCRIPTION
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4.6 1995 Outside Directors Stock Option Plan (incorporated by
reference to Exhibit No. 10.4 to Registration Statement No.
33-93124 of Cybex Computer Products Corporation)
4.7 1998 Employee Stock Incentive Plan (incorporated by reference to
Exhibit No. 10.7 to Cybex Computer Products Corporation's Annual
Report on Form 10-K as filed on June 26, 1998)
4.8 Employee Stock Purchase Plan (incorporated by reference to
Exhibit No. 10.11 to Registration on Form SB-2 No. 333-17753 of
Apex Inc.)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to legality
of securities being registered
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
for Apex Inc.
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
for Cybex Computer Products Corporation
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
ITEM 9. UNDERTAKINGS.
(a) RULE 415 OFFERING
Avocent 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 of 1933, 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
Avocent hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of Avocent's annual report
pursuant to section 13(a) or section 15(d) of the
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Securities Exchange Act of 1934 (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) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
Avocent pursuant to the foregoing provisions, or otherwise, Avocent 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 Avocent 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, Avocent 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,
Avocent has duly caused this registration statement on Form S-8 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Redmond, State of Washington, on this 1st day of July, 2000.
AVOCENT CORPORATION
By: /s/ Samuel F. Saracino
---------------------------------
Samuel F. Saracino
Senior Vice President, Legal and
Corporate Affairs, General Counsel
and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE
APPEARS BELOW CONSTITUTES AND APPOINTS SAMUEL F. SARACINO AND DOUGLAS E.
PRITCHETT AND EACH ONE OF THEM, ACTING INDIVIDUALLY AND WITHOUT THE OTHER, AS
HIS ATTORNEY-IN-FACT, EACH WITH FULL POWER OF SUBSTITUTION, FOR HIM IN ANY AND
ALL CAPACITIES, TO SIGN ANY AND ALL 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 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> <C> <C>
/s/ Stephen F. Thornton President, Chief Executive Officer July 1, 2000
---------------------------------------- (Principal Executive Officer) and Chairman
(Stephen F. Thornton)
Senior Vice President, Finance, Chief Financial July 1, 2000
/s/ Douglas E. Pritchett Officer, Treasurer and Assistant Secretary
---------------------------------------- (Principal Financial and Accounting Officer)
(Douglas E. Pritchett)
/s/ (Doyle C. Weeks) Executive Vice President Group Operations and July 1, 2000
---------------------------------------- Business Development and Director
(Doyle C. Weeks)
/s/ Barry L. Harmon Senior Vice President, West Coast Operations July 1, 2000
---------------------------------------- and Director
(Barry L. Harmon)
/s/ John R. Cooper Director July 1, 2000
----------------------------------------
(John R. Cooper)
/s/ Edwin L. Harper Director July 1, 2000
----------------------------------------
(Edwin L. Harper)
/s/ William McAleer Director July 1, 2000
----------------------------------------
(William McAleer)
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