As filed with the Securities and Exchange Commission on April 25, 2002
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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ALL AMERICAN SEMICONDUCTOR, INC.
(Exact name of registrant as specified in its charter)
Delaware 59-2814714
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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16115 N.W. 52nd Avenue
Miami, Florida 33014
(Address of Principal Executive Office, Including Zip Code)
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AMENDED AND RESTATED ALL AMERICAN SEMICONDUCTOR, INC.
EMPLOYEES', OFFICERS', DIRECTORS'
STOCK OPTION PLAN
(Full Title of the Plan)
Paul Goldberg
Chairman of the Board of Directors
All American Semiconductor, Inc.
16115 N.W. 52nd Avenue
Miami, Florida 33014
(Name and Address of Agents for Service)
(305) 621-8282
(Telephone Number, Including
Area Code, of Agents for Service)
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Copy to:
Alan D. Axelrod, Esq.
Bilzin Sumberg Dunn Baena Price & Axelrod LLP
2500 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2336
(305) 374-7580
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum
Amount to be maximum offering aggregate offering Amount of
Title of securities to be registered registered price per share (1) price (1) registration fee
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Common Stock, $0.01 par value 200,000 $3.83 $766,000.00 $70.47
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(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and 457(h) under
the Securities Act of 1933, as amended, based upon an average of the high and low prices reported on The Nasdaq Stock
Market on April 22, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*With respect to the Amended and Restated All American Semiconductor,
Inc. Employees', Officers', Directors' Stock Option Plan under which shares of
Common Stock, $0.01 par value, of All American Semiconductor, Inc., a Delaware
corporation (the "Registrant" or the "Company"), are being registered hereunder,
the document(s) containing the information specified in this Part I will be sent
or given to the applicable participants as specified by Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents will
not be 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 under the Securities Act. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, shall
constitute a prospectus which meets the requirements of Section 10(a) of the
Securities Act.
I-1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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There are hereby incorporated by reference in this Registration
Statement the following documents and information previously filed with the
Commission:
1. The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 2001; and
2. The description of the Registrant's Common Stock to be
offered hereby which is contained in the Registrant's Registration Statement on
Form 8-A (File No. 000-16207) declared effective by the Commission on September
10, 1987, as updated by the Registrant's Current Report on Form 8-K filed with
the Commission on June 1, 1999, including any amendments or reports filed for
the purpose of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby 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 a part hereof
from the date of filing of such documents.
Except as superseded or modified herein, any statement contained in any
document incorporated by reference herein 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 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 document.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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The Registrant's certificate of incorporation, as amended (the
"Certificate of Incorporation"), contains provisions which would limit the scope
of personal liability of its directors to the Registrant or its shareholders for
monetary damages for breach of fiduciary duty. The provisions are consistent
with Section 102(b)(7) of the Delaware General Corporation Law, which is
designed, among other things, to encourage qualified individuals to serve as
directors of Delaware corporations by permitting a Delaware corporation and its
shareholders to adopt provisions in the corporation's certificate of
incorporation limiting directors' liability for monetary damages for breach of
the duty of care.
II-1
These provisions will protect the Registrant's directors against
personal liability from breaches of their duty of care in certain circumstances.
The provisions of the Certificate of Incorporation would absolve directors of
liability for negligence in the performance of their duties, including gross
negligence. The Registrant's directors would remain liable, under current law,
for breaches of their duty of loyalty to the Registrant and its shareholders, as
well as acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law or a transaction from which a director
derives any improper personal benefit. Also, the provisions would not absolve
the Registrant's directors of liability under Section 174 of the Delaware
General Corporation Law, which makes directors personally liable for unlawful
dividends or unlawful stock repurchases or redemptions and expressly sets forth
a negligence standard with respect to such liability. Further, these provisions
would not eliminate or limit liability of the Registrant's directors arising in
connection with causes of action brought under Federal securities laws.
While the provisions of the Registrant's Certificate of Incorporation
provide the Registrant's directors with protection from awards of monetary
damages for breaches of the duty of care, it does not eliminate their duty of
care. Accordingly, the provisions of the Registrant's Certificate of
Incorporation would have no effect on the availability of suitable non-monetary
remedies such as an injunction or rescission based upon a director's breach of
the duty of care.
In addition, the Registrant's Certificate of Incorporation provides that
the Registrant shall indemnify its directors and officers to the fullest extent
permitted by Section 145 of the Delaware General Corporation Law, as the same
may be amended and supplemented. This indemnification provision is not exclusive
of any other rights to which those indemnified may be entitled under the
Registrant's Bylaws, agreements, vote of stockholders or disinterested directors
or otherwise.
The Registrant has also entered into indemnification agreements with its
executive officers and directors. The indemnification agreements provide that,
in the event of claims against an officer or director relating to his or her
position as an officer, director or agent of the Registrant, the Registrant
shall indemnify that officer or director to the fullest extent permitted by law
against any and all expenses, judgments, fines, penalties and amounts paid in
settlement of those claims and any taxes imposed on that officer or director as
a result of payments received pursuant to the indemnification agreements. The
Registrant's obligations to indemnify its officers and directors are subject to
review by its Board of Directors, or persons appointed by its Board of
Directors, that the indemnification would be permissible under applicable law.
In the event of a change in control of the Registrant which has not been
approved by a majority of the Registrant's directors, a special independent
counsel selected by the officer or director seeking indemnification and approved
by the Registrant must render its legal opinion to the Registrant and that
officer or director as to whether and to what extent the officer or director
would be permitted to be indemnified under applicable law.
The indemnification agreements require the Registrant to advance to
officers and directors expenses they incur in connection with investigating,
defending, or otherwise participating in any indemnification claim, subject to
the condition that if the Board of Directors, or the special independent legal
counsel in the event of a change in control of the Registrant, determines that
the officer or director would not be permitted to be indemnified under
applicable law, the Registrant shall be reimbursed for any amounts advanced to
that officer or director. In the event of a potential change in control, the
indemnification agreements require the Registrant, upon written request by an
officer or director, to create a trust for the benefit of that officer or
director. The Registrant must fund the trust in an amount sufficient to satisfy
any and all expenses reasonably related to any claim anticipated at the time of
the request. The trustee must pay to the officer or director all amounts to
which that officer or director is entitled to indemnification and all unexpended
funds are to be returned to the Registrant.
II-2
The Registrant also currently carries liability insurance for the
benefit of its directors and officers.
Insofar as indemnifications for liabilities arising under the Securities
Act may be permitted to the Registrant's directors and officers pursuant to the
Registrant's Certificate of Incorporation and Bylaws or the indemnification
agreements, the Registrant understands that the Commission is of the opinion
that it is against public policy, as expressed in the Securities Act, and,
therefore, may be unenforceable. Accordingly, in the event that a claim for
indemnification is asserted by any of the Registrant's directors or officers and
the Commission is still of the same opinion, the Registrant (except insofar as
the claim seeks reimbursement from the Registrant of expenses paid or incurred
by a director, officer or controlling person in successful defense of any
action, suit or proceeding) will, unless the matter has theretofore been
adjudicated by precedent deemed by the Registrant's counsel to be controlling,
submit to a court of appropriate jurisdiction the question whether or not
indemnification by the Registrant is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of the issue.
At present, there is no pending litigation or proceeding involving any
of the Registrant's directors, officers or employees as to which indemnification
is sought, nor is the Registrant aware of any threatened litigation or
proceeding that may result in claims for indemnification.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
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4.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibits 3.1 to the Company's Registration
Statement on Form S-1, File No. 33-15345-A, and to the Company's
Form 10-K for the year ended December 31, 1991), as further
amended by (i) Certificate of Amendment of Certificate of
Incorporation dated August 21, 1995 of the Company (incorporated
by reference to Exhibit 3.1 to the Company's Form 10-K for the
year ended December 31, 1995) and (ii) Certificate of Amendment
of Certificate of Incorporation dated June 1, 1999 of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Form 10-Q for the quarter ended June 30, 1999).
4.2 Bylaws of the Registrant, as amended (incorporated by reference
to Exhibit 3.1 to the Company's 10-Q for the quarter ended June
30, 1994).
4.3 Amended and Restated All American Semiconductor, Inc.
Employees', Officers', Directors' Stock Option Plan, as amended
through August 22, 2001 (incorporated by reference to Exhibit
10.7 to the Company's Form 10-K for the year ended December 31,
2001).
II-3
Exhibit No. Description
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5.1 Opinion of Bilzin Sumberg Dunn Baena Price & Axelrod LLP
regarding legality of Common Stock.*
23.1 Consent of Bilzin Sumberg Dunn Baena Price & Axelrod LLP
(included in Exhibit 5.1).
23.2 Consent of Independent Certified Public Accountants.*
24.1 Power of Attorney (see page II-7).
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* Filed herewith.
Item 9. Undertakings.
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(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 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 this 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 this Registration Statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (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 with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated
by reference 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.
II-4
(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.
(4) 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 Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in this Registration Statement 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.
(b) 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 Securities Act of 1933 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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
SIGNATURES
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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 Miami, State of Florida, on April 25, 2002.
ALL AMERICAN SEMICONDUCTOR, INC.
By: /s/ Paul Goldberg
-----------------------------------
Paul Goldberg
Chairman of the Board of Directors
II-6
POWER OF ATTORNEY
We, the undersigned officers and directors of All American Semiconductor,
Inc., do hereby constitute and appoint each of Paul Goldberg and Bruce M.
Goldberg, our true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for each of us and in our 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 each said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith and about the
premises, as fully to all intents and purposes as each of us might or could do
in person, hereby ratifying and confirming all that each said attorney-in-fact
and agent, or his or their substitute or substitutes, may lawfully do or cause
to be done by virtue thereof.
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/ Paul Goldberg
----------------------
Paul Goldberg Chairman of the Board of Directors April 25, 2002
/s/ Bruce M. Goldberg President and Chief Executive Officer
---------------------- and Director April 25, 2002
Bruce M. Goldberg
/s/ Howard L. Flanders Executive Vice President, Secretary
---------------------- and Chief Financial Officer and
Howard L. Flanders Director April 25, 2002
/s/ Rick Gordon Senior Vice President of Sales and
---------------------- Director April 25, 2002
Rick Gordon
/s/ Robin L. Crandell
----------------------
Robin L. Crandell Director April 25, 2002
/s/ Lewis B. Freeman
----------------------
Lewis B. Freeman Director April 25, 2002
/s/ Daniel M. Robbin
----------------------
Daniel M. Robbin Director April 25, 2002
/s/ Richard E. Siegel
----------------------
Richard E. Siegel Director April 25, 2002
II-7
INDEX TO EXHIBITS
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Exhibit
Number Document
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4.1 Certificate of Incorporation, as amended (incorporated by
reference to Exhibits 3.1 to the Company's Registration
Statement on Form S-1, File No. 33-15345-A, and to the Company's
Form 10-K for the year ended December 31, 1991), as further
amended by (i) Certificate of Amendment of Certificate of
Incorporation dated August 21, 1995 of the Company (incorporated
by reference to Exhibit 3.1 to the Company's Form 10-K for the
year ended December 31, 1995) and (ii) Certificate of Amendment
of Certificate of Incorporation dated June 1, 1999 of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Form 10-Q for the quarter ended June 30, 1999).
4.2 Bylaws of the Registrant, as amended (incorporated by reference
to Exhibit 3.1 to the Company's 10-Q for the quarter ended June
30, 1994).
4.3 Amended and Restated All American Semiconductor, Inc.
Employees', Officers', Directors' Stock Option Plan, as amended
through August 22, 2001 (incorporated by reference to Exhibit
10.7 to the Company's Form 10-K for the year ended December 31,
2001).
5.1 Opinion of Bilzin Sumberg Dunn Baena Price & Axelrod LLP
regarding legality of Common Stock.*
23.1 Consent of Bilzin Sumberg Dunn Baena Price & Axelrod LLP
(included in Exhibit 5.1).
23.2 Consent of Independent Certified Public Accountants.*
24.1 Power of Attorney (see page II-7).
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* Filed herewith.