As filed with the Securities and Exchange Commission on June 8, 2000
Registration No. 333- _________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ALPHA INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 04-2302115
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
20 Sylvan Road, Woburn, Massachusetts 01801
(Address of Principal Executive Offices) (Zip Code)
Network Device Inc. 1997 Stock Option Plan
Network Device Inc. 1999 Stock Option Plan
(Full Title of the Plans)
Margaret A. Brown, Esquire
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, MA 02108-3194
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
James C. Nemiah
Alpha Industries, Inc.
20 Sylvan Road, Woburn, Massachusetts 01801
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to be Offering Aggregate Registration
to be Registered Price Offering Fee
Registered Per Share Price
- ----------------------------------------------------------------------------------------------------------
Common Stock, $.25 par 42,881 $1.66 $ 71,182.46 $18.79
value (1) 135,850 $2.49 $338,266.50 $89.30
Total: 178,731 shares $409,448.96 $108.09
- ---------------------------------------------------------------------------------------------------------
(1) All of such shares are issuable upon the exercise of outstanding
options to purchase the number of shares at the exercise price listed
above. Pursuant to Rule 457(h)(1), the aggregate offering price and
the fee have been computed upon the basis of the price at which the
options may be exercised.
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in
Part I will be sent or given to employees as specified by Rule 428(b)(1).
Such documents are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. Such
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and
reporting requirements of Sections 13(a), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). The following
documents, which are on file with the Commission, are incorporated in this
Registration Statement by reference:
(1) Annual Report on Form 10-K for the fiscal year ended March
28, 1999;
(2) Quarterly Reports on Form 10-Q for the quarters ended June
27, 1999, September 26, 1999 and December 26, 1999.
(3) Current Reports on Form 8-K filed on February 16, 2000 and
May 8, 2000.
(4) The description of Common Stock contained in the
Registration Statement on Rule 424(b)(4) Prospectus
filed on November 11, 1995.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all shares
of Common Stock offered hereby have been sold or which deregisters all
shares of Common Stock then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of the
filing of such documents. Any statement contained 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 or is deemed to be incorporated
by reference herein modifies or supersedes such statement. 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
grants the Registrant the power to indemnify each 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 or was a
director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, or
other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Registrant, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful;
provided, however, no indemnification shall be made in connection with any
proceeding brought by or in the right of the Registrant where the person
involved is adjudged to be liable to the Registrant except to the extent
approved by a court. Article VII of the Registrant's Restated By-laws
provides that the Registrant shall indemnify each person (i) who is a
present or former director or officer of the Registrant or who at the
request of the Registrant serves or has served a partnership or joint
venture to which the Registrant is a party, a nominee trust established by
the Registrant, or an employee benefit plan sponsored by the Registrant in
one of those capacities or as a trustee, partner or fiduciary and (ii) who
by reason of his position was, is, or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, against
all expenses incurred in connection with the defense or disposition of any
such proceeding if the person acted in good faith, and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Registrant. The Registrant may also grant indemnification and the
advancement of expenses to any employee or agent of the Registrant or to
any officer or director of any other corporation or enterprise who serves
or has served as such at the request of the Registrant. The indemnification
provided for in Article VII is not exclusive of any other rights to which
those seeking indemnification may be entitled. Article VII also provides
that the Registrant shall have the power to purchase and maintain insurance
on behalf of any officer, director, employee or agent against any liability
asserted against and incurred by him in any capacity, or arising out of his
status as such, whether or not the Registrant would have the power to
indemnify him against such liability under the provisions of Article VII.
Article TENTH of the Registrant's Restated Certificate of
Incorporation eliminates a director's personal liability for monetary
damages to the Registrant and its stockholders for breaches of fiduciary
duty as a director, except for breach of the director's duty of loyalty to
the Registrant or its stockholders, acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
pursuant to Section 174 of the Delaware General Corporation Law, or for any
transaction from which the director derived an improper personal benefit.
The Registrant maintains directors' and officers'
liability insurance.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
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:
(i) 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. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the 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 Securities Exchange Act of 1934) 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. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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.
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,
hereunto duly authorized, in the Town of Woburn, Commonwealth of
Massachusetts on this 8th day of June, 2000.
ALPHA INDUSTRIES, INC.
By: /s/ David J. Aldrich
David J. Aldrich
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Alpha Industries, Inc. hereby
severally constitute David J. Aldrich and James C. Nemiah and each of them
singly, our true and lawful attorney with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and
all subsequent amendments to said Registration Statement, and generally to
do all such things in our names and behalf in our capacities as officers
and directors to enable Alpha Industries, Inc. to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by said attorney , or
any of them, to said Registration Statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Thomas C. Leonard Chairman of the Board of June 8, 2000
- --------------------- Directors, and Director
Thomas C. Leonard President and Chief Executive June 8, 2000
/s/ David J. Aldrich Executive Officer
- --------------------
David J. Aldrich
/s/ Paul E. Vincent Vice President, Treasurer, Chief June 8, 2000
- ------------------- Financial Officer and Secretary
Paul E. Vincent
/s/ Richard Langman Vice President and President of June 8, 2000
- ------------------- Trans-Tech Inc.]
Richard Langman
/s/ George S. Kariotis Director June 8, 2000
- ----------------------
George S. Kariotis
/s/ Timothy R. Furey Director June 8, 2000
- --------------------
Timothy R. Furey
/s/ James W. Henderson Director June 8, 2000
- ----------------------
James W. Henderson
/s/ Arthur Pappas Director June 8, 2000
- -----------
Arthur Pappas
/s/ Sidney Topol Director June 8, 2000
- ----------------
Sidney Topol
EXHIBIT INDEX
Exhibit
Number Description
4.1 Specimen Certificate of Common Stock, $.25 par value per
share, of the Registrant is incorporated herein by
reference to Exhibit 4(a) to the Registrant's
Registration Statement on Form S-3 (File No. 33-63857)
5 Opinion of Corporate Counsel of Alpha Industries, Inc.
23.1 Consent of Corporate Counsel of Alpha Industries, Inc.
(included in Exhibit 5)
24 Power of Attorney (included in the signature pages of
this Registration Statement)
EXHIBIT 5
[ALPHA INDUSTRIES, INC. LETTERHEAD]
June 8, 2000
Alpha Industries, Inc.
20 Sylvan Road
Woburn, Massachusetts 01801
Re: Network Device Inc. 1997 Stock Option Plan
Network Device Inc. 1999 Stock Option Plan
Ladies and Gentlemen:
I have acted as corporate counsel to Alpha Industries,
Inc., a Delaware corporation (the "Registrant"), in connection with the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement"), for the purpose of registering with the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933,
as amended (the "Securities Act"), of an aggregate of 178,731 shares of the
Registrant's common stock, par value $0.25 per share ("Common Stock"),
issuable pursuant to the Network Device Inc. 1997 Stock Option Plan and the
Network Device Inc. 1999 Stock Option Plan (the "Plans"). The Plans
provided for the grant of options to purchase common stock, no par value,
of Network Device Inc. to officers, directors, employees and consultants of
Network Device Inc. However, pursuant to the Agreement and Plan of Merger
among the Registrant, Aries Acquisition Corporation, a Delaware corporation
and wholly owned subsidiary of the Registrant and Network Device Inc.,
dated as of February 10, 2000, these options have each been converted into
an option to purchase a fraction of a share of Common Stock ("Options").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction,
of (i) the Registration Statement, as filed with the Commission on the date
hereof under the Securities Act; (ii) a specimen certificate representing
the Common Stock; (iii) the Restated Certificate of Incorporation of the
Registrant, as presently in effect; (iv) the Amended and Restated By-Laws
of the Registrant, as presently in effect; (v) certain resolutions of the
Board of Directors of the Registrant relating to the Plans; and (vi) the
Plans. I have also examined originals or copies, certified or otherwise
identified to my satisfaction, of such records of the Registrant and such
other documents, certificates and records as I have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In my examination, I have assumed the legal capacity of
all natural persons, the genuineness of all signatures, the authenticity of
all documents submitted to me as originals, the conformity to original
documents of all documents submitted to me as certified, conformed or
photostatic copies and the authenticity of the originals of such copies. In
making my examination of documents executed or to be executed by parties
other than the Registrant, I have assumed that such parties had or will
have the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on
such parties. As to any facts material to the opinions expressed herein
which I have not independently established or verified, I have relied upon
statements and representations of officers and other representatives of the
Registrant and others. I have assumed that each award agreement setting
forth the terms of each grant of options or other awards under the Plans
will be consistent with the Plans and will be duly authorized and validly
executed and delivered by the parties thereto, and that the consideration
received by the Registrant for the Common Stock delivered pursuant to the
Plans will be in an amount at least equal to the par value of such Common
Stock.
I am admitted to the bar in the State of Massachusetts,
and I do not express any opinion as to the laws of any jurisdiction other
than the particular law of the state in which I am admitted to the bar.
Based upon and subject to the foregoing, I am of the
opinion that the shares of Common Stock have been duly authorized for
issuance by the Registrant and, when such shares of Common Stock are issued
upon exercise of Options in accordance with the terms of the Plans, such
shares of Common Stock will be validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such
consent, I do not thereby admit that I am included in the category of
persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished by me, as the Registrant's
corporate counsel, in connection with the filing of the Registration
Statement with the Commission and, except as provided in the immediately
preceding paragraph, is not to be used, circulated, quoted or otherwise
referred to for any other purpose or relied upon by any other person
without my prior written permission.
Very truly yours,
/s/ JAMES C. NEMIAH
JAMES C. NEMIAH
