-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UanubhTTXIZucUeQN/nbnJjMVDdhI3oslO5zX2NfnssePiorMOGQvz2UAlzTkL7F RecaXfBEo3atR35a0PkLNw== 0001012870-99-003680.txt : 19991018 0001012870-99-003680.hdr.sgml : 19991018 ACCESSION NUMBER: 0001012870-99-003680 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991015 EFFECTIVENESS DATE: 19991015 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATG INC CENTRAL INDEX KEY: 0001054000 STANDARD INDUSTRIAL CLASSIFICATION: HAZARDOUS WASTE MANAGEMENT [4955] IRS NUMBER: 942657762 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-89115 FILM NUMBER: 99729139 BUSINESS ADDRESS: STREET 1: 47375 FREMONT BLVD CITY: FREMONT STATE: CA ZIP: 94538 BUSINESS PHONE: 5104903008 MAIL ADDRESS: STREET 1: 47375 FREMONT BLVD CITY: FREMONT STATE: CA ZIP: 94538 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on October 15, 1999 Registration No. 333-_________ ________________________________________________________________________________ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- ATG INC. (Exact name of registrant as specified in its charter) California 94-2657762 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) -------------------- 47375 Fremont Boulevard Fremont, California 94538 (Address of principal executive offices) -------------------- ATG INC. 401(k) PROFIT SHARING PLAN (Full title of the plan) Doreen M. Chiu President and Chief Executive Officer ATG Inc. 47375 Fremont Boulevard Fremont, California 94538 (Name and address of agent for service) (510) 490-3008 (Telephone number, including area code, of agent for service) -------------------- Copies of communications to: Brian A. Sullivan, Esq. Miller & Holguin 1801 Century Park East Seventh Floor Los Angeles, California 90067 (310) 556-1990 -------------------- CALCULATION OF REGISTRATION FEE -------------------------------
- --------------------------------------------------------------------------------------------------- Title of Proposed Maximum Proposed Maximum Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registered Registered Share(1) Price(1) Registration Fee - --------------------------------------------------------------------------------------------------- Common Stock 150,000 shares $4.83 $724,500 $201.42 - ---------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h) promulgated under the Securities Act of 1933, as amended (the "Securities Act"). The price per share and aggregate offering price are based upon the average of the high and low price of the Company's Common Stock on October 11, 1999, as reported on the National Association of Securities Dealers Automated Quotation System. INCORPORATION OF DOCUMENTS BY REFERENCE --------------------------------------- The following documents filed by ATG Inc. (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference into this Registration Statement: 1. The Company's annual report on Form 10-K for the year ended December 31, 1998, as amended effective on September 15, 1999; 2. The Company's quarterly report on Form 10-Q for the quarter ended March 31, 1999; 3. The Company's quarterly report on Form 10-Q for the quarter ended June 30, 1999; 4. The Company's Amendment No. 1 to Form 8-K dated December 1, 1998 and filed as of August 4, 1999; 5. The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A under the Securities Exchange Act of 1934 (the "Exchange Act"), Commission file number 0- 23781; and 6. All reports and other documents subsequently filed by the Company 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 securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports and documents. DESCRIPTION OF SECURITIES ------------------------- Not applicable. INTERESTS OF NAMED EXPERTS AND COUNSEL -------------------------------------- Not applicable. INDEMNIFICATION OF DIRECTORS AND OFFICERS ----------------------------------------- The Company's Amended and Restated Articles of Incorporation, as amended ("Articles"), provide that, pursuant to the California Corporations Code, the liability of the directors of the Company for monetary damages shall be eliminated to the fullest extent permissible under California law. This is intended to eliminate the personal liability of a director for monetary damages in an action brought by, or in the right of, the Company for breach of a director's duties to the Company or its shareholders. This provision in the Articles does not eliminate the directors' fiduciary duty and does not apply for certain liabilities: (i) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law; (ii) for acts or omissions that a director believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the director; (iii) for any transaction from which a director derived an improper personal benefit; (iv) for acts or omissions that show a reckless disregard for the director's duty to the Company or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Company or -2- its shareholders; (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the Company or its shareholders; (vi) with respect to certain transactions or the approval of transactions in which a director has a material financial interest; and (vii) expressly imposed by statute for approval of certain improper distributions to shareholders or certain loans or guarantees. This provision also does not limit or eliminate the rights of the Company or any shareholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director's duty of care. The Articles also authorize the Company to indemnify the directors and officers of the Company to the fullest extent permissible under California law. Section 317 of the California Corporations Code ("Section 317") provides that a California corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding, whether civil, criminal, administrative or investigative (other than action by or in the right of the corporation), by reason of the fact that he is or was a director, officer, employee, or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action 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 corporation, and, with respect to any criminal action or proceeding, had no cause to believe his conduct was unlawful. Section 317 also provides that a California corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under similar standards, except that no indemnification may be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper. Section 317 provides further that to the extent a director or officer of a California corporation has been successful in the defense of any action, suit or proceeding referred to in the previous paragraphs or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith; that indemnification authorized by Section 317 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and that the corporation may purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 317. EXEMPTION FROM REGISTRATION CLAIMED ----------------------------------- Not applicable. -3- EXHIBITS -------- EXHIBIT DESCRIPTION OF EXHIBIT ------- ---------------------- NUMBER ------ 4.1 Articles of Incorporation of the Company* 4.2 Specimen Common Stock Certificate* 5.1 Opinion of Miller & Holguin 5.2 Internal Revenue Service Determination Letter 23.1 Consent of PricewaterhouseCoopers L.L.P. 23.2 Consent of Miller & Holguin. Reference is made to Exhibit 5.1. 24.1 Power of Attorney. Reference is made to the signature page. ________________________ *Filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 333-46107), as amended through the date hereof, which exhibit is incorporated herein by reference. UNDERTAKINGS ------------ 1. The undersigned registrant 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; (ii) To reflect in the prospectus any facts or events arising after the effective date of such 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 such registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) promulgated under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in such effective registration statement; and -4- (iii) To include any material information with respect to the plan of distribution not previously disclosed in such registration statement or any material change to such information in such registration statement; Provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) shall 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 Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in such registration statement. (b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (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. The undersigned 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. 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 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 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 and will be governed by the final adjudication of such issue. -5- SIGNATURES ---------- THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Fremont, State of California, on the 15th day of October, 1999. ATG INC. By: /s/ Doreen M. Chiu ----------------- Doreen M. Chiu President and Chief Executive Officer POWER OF ATTORNEY ----------------- KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Doreen M. Chiu and Steven J. Guerrettaz, and each or any one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his 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 said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, 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 their substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Doreen M. Chiu Chairman, Chief Executive - -------------------------------- Officer and President Doreen M. Chiu (Principal Executive Officer) October 15, 1999 /s/ Steven J. Guerrettaz Chief Financial Officer - -------------------------------- and Director (Principal Steven J. Guerrettaz Financial and Accounting October 15, 1999 Officer) /s/ Frank Y. Chiu - -------------------------------- Director October 15, 1999 Frank Y. Chiu /s/ William M. Hewitt - -------------------------------- Director October 15, 1999 William M. Hewitt
-6- EXHIBIT INDEX ------------- EXHIBIT ------- NUMBER DESCRIPTION OF EXHIBIT ------- ---------------------- 4.1 Articles of Incorporation of the Company* 4.2 Specimen Common Stock Certificate* 5.1 Opinion of Miller & Holguin 5.2 Internal Revenue Service Determination Letter 23.1 Consent of PricewaterhouseCoopers L.L.P. 23.2 Consent of Miller & Holguin. Reference is made to Exhibit 5.1. 24.1 Power of Attorney. Reference is made to the signature page. ________________________ *Filed as an exhibit to the Company's Registration Statement on Form S-1 (No. 333-46107), as amended through the date hereof, which exhibit is incorporated herein by reference. -7- EX-5.1 2 OPINION OF MILLER & HOLGUIN EXHIBIT 5.1 [MILLER & HOLGUIN LETTERHEAD] October 15, 1999 ATG Inc. 47375 Fremont Boulevard Fremont, California 94538 Ladies and Gentlemen: We are providing this opinion with respect to certain matters in connection with the filing by ATG Inc. (the "Company") of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission covering the offering of up to 150,000 shares of the Company's Common Stock, no par value per share (the "Common Stock"), pursuant to the ATG Inc. 401(k) Profit Sharing Plan (the "401(k) Profit Sharing Plan") (collectively, the "Shares"). In connection with this opinion, we have examined and relied upon the Registration Statement and related Prospectus, the Company's Amended and Restated Articles of Incorporation and its Bylaws, as amended, the 401(k) Profit Sharing Plan, resolutions of the Company's Board of Directors dated January 13, 1999 and August 27, 1998, and such other documents, records, certificates, memoranda and other instruments as we deem necessary or appropriate to enable us to render this opinion. In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents, the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares newly issued by the Company, when issued and sold in accordance with the terms of (A) the 401(k) Profit Sharing Plan and (B) the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable. We consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, MILLER & HOLGUIN By: /s/ Brian A. Sullivan --------------------- Brian A. Sullivan EX-5.2 3 INTERNAL REVENUE SERVICE DETERMINATION LETTER EXHIBIT 5.2 PAGE 1 OF 1 Internal Revenue Service Department of the Treasury Plan Description: Prototype Non-standardized Profit Sharing Plan with CODA FFN: 5933493220I-084 Case: 9101748 EIN: 95-3162623 BPD: 01 Plan: 004 Letter Serial No: D358313a Washington, DC 20224 Person to Contact: Mr. Welty CALIFORNIA CENTRAL TRUST BANK CORP Telephone Number: (202) 566-4111 15253 BAKE PARKWAY Refer Reply to: E;EP:0:2 IRVINE CA 92718 Date: 05/24/91
Dear Applicant: In our opinion, the form of the plan identified above is acceptable under section 401 of the Internal Revenue Code for use by employers for the benefit of their employees. This opinion relates only to the acceptability of the form of the plan under the Internal Revenue Code. It is not an opinion of the effect of other Federal or local statutes. You must furnish a copy of this letter to each employer who adopts this plan. You are also required to send a copy of the approved form of the plan, any approved amendments and related documents to each Key District Director of Internal Revenue Service in whose jurisdiction there are adopting employers. Our opinion on the acceptability of the form of the plan is not a ruling or determination as to whether an employer's plan qualifies under Code section 401(a). Therefore, an employer adopting the form of the plan should apply for a determination letter by filing an application with the Key District Director of Internal Revenue Service on Form 5387, Short Form Application for Determination for Employee Benefit Plan. If you, the sponsoring organization, have any questions concerning the IRS processing of this case, please call the above telephone number. This number is only for use of the sponsoring organization. Individual participants and/or adopting employers with questions concerning the plan should contact the sponsoring organization. The plan's adoption agreement must include the sponsoring organization's address and telephone number for inquiries by adopting employers. If you write to the IRS regarding this plan, please provide your telephone number and the most convenient time for us to call in case we need more information. Whether you call or write, please refer to the Letter Serial Number and File Folder Number shown in the heading of this letter. You should keep this letter as a permanent record. Please notify us if you modify or discontinue sponsorship of this plan. Sincerely yours, /s/ [ILLEGIBLE] Chief, Employee Plans Qualifications Branch EX-23.1 4 CONSENT OF PRICEWATERHOUSECOOPERS LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- We consent to the incorporation by reference in the registration statements of ATG Inc. Form S-8 of the ATG Inc. 401(k) PROFIT SHARING PLAN of our report dated February 26, 1999 on our audits of the consolidated financial statements of ATG, Inc. and subsidiaries as of December 31, 1998 and 1997, and for each of the three years in the period ended December 31, 1998 and on our audit of the consolidated financial statement schedule, both of which reports are included in this Annual Report on Form 10-K/A. /s/ PricewaterhouseCoopers LLP San Jose, Califronia October 15, 1999 -----END PRIVACY-ENHANCED MESSAGE-----