<PAGE>
As filed with the Securities and Exchange Commission on October 31, 1997
Reg. No. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
DIGITAL VIDEO SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0333728
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
160 KNOWLES DRIVE
LOS GATOS, CALIFORNIA 95030
(Address of principal executive offices) (Zip Code)
_________________
1993 STOCK OPTION PLAN
1996 STOCK OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
_________________
THOMAS R. PARKINSON
PRESIDENT
DIGITAL VIDEO SYSTEMS, INC.
160 KNOWLES DRIVE
LOS GATOS, CALIFORNIA 95030
(Name and address of agent for service)
(408) 874-8200
(Telephone number, including area code, of agent for service)
Copy to:
SANFORD J. HILLSBERG, ESQ.
TROY & GOULD PROFESSIONAL CORPORATION
1801 CENTURY PARK EAST, SUITE 1600
LOS ANGELES, CALIFORNIA 90067
(310) 553-4441
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Proposed Maximum Proposed Maximum
Amount To Be Offering Price Aggregate Offering Amount of
Title of Securities To Be Registered Registered/(1)/ Per Share Price Registration Fee/(7)/
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.0001 par value.......... 1,201,960/(2)/ $ 0.139 $ 167,073 $ 51
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 722,338/(2)/ $ 3.50 $ 2,528,183 $ 766
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 291,524/(2)/ $ 7.25 $ 2,113,549 $ 640
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 400,000/(2)/ $ 3.75 $ 1,500,000 $ 455
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 70,500/(2)/ $ 5.00 $ 352,500 $ 107
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 139,530/(3)/ $ 4.13 $ 575,561 $ 174
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 17,595/(4)/ $ 8.375 $ 147,359 $ 45
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 500,000/(4)/ $ 3.75 $ 1,875,000 $ 568
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 789,250/(4)/ $ 5.00 $ 3,946,250 $ 1,196
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 193,155/(5)/ $ 4.13 $ 796,764 $ 241
- ---------------------------------------------------------------------------------------------------------------------------
Common Stock $.0001 par value.......... 500,000/(6)/ $ 4.13 $ 2,062,500 $ 625
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Total.......................... 4,825,852 $ 16,064,737 $ 4,868
=========================================================================================================================
</TABLE>
Page 1 of 8
<PAGE>
(1) In accordance with Rule 416 of the General Rules and Regulations under the
Securities Act of 1933, there also are being registered such indeterminate
number of additional shares of Common Stock as may become issuable pursuant
to anti-dilution provisions of the plans.
(2) Indicates the number of shares of Common Stock $.0001 par value ("Common
Stock") authorized and reserved for issuance and which may be sold upon the
exercise of options previously granted under the 1993 Stock Option Plan of
Digital Video Systems, Inc. (the "Registrant").
(3) Indicates the number of shares of Common Stock authorized and reserved for
issuance under the 1993 Plan which may be sold upon the exercise of options
which may be granted to certain persons under the 1993 Plan.
(4) Indicates the number of shares of Common Stock authorized and reserved for
issuance and which may be sold upon the exercise of options previously
granted under the Registrant's 1996 Stock Option Plan (the "1996 Plan").
(5) Indicates the number of shares of Common Stock authorized and reserved for
issuance and which may be sold upon the exercise of options which may be
granted to certain persons under the 1996 Plan.
(6) Indicates the number of shares of Common Stock authorized and reserved for
issuance upon the purchase of shares of Common Stock which may be sold to
certain persons under the Registrant's 1997 Employee Stock Purchase Plan
(the "1997 Plan").
(7) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provision of Rule 457(h) under the
Securities Act of 1933, as amended (the "Securities Act") as follows: (i)
in the case of shares of Common Stock which may be purchased upon the
exercise of outstanding options, the fee is calculated on the basis of the
price at which such options may be exercised; and (ii) in the case of (A)
shares of Common Stock for which options have not yet been granted and the
option price of which is therefore unknown and (B) shares of Common Stock
which have not yet been purchased under the 1997 Plan, the purchase price
of which is therefore unknown, the fee is calculated on the basis of the
average of the high and low sale price per share of Common Stock reported
on the Nasdaq National Market System as of October 27, 1997 (within 5
business days prior to filing this Registration Statement).
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Page 2 of 8
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Items 1 and 2 of Part I to be contained in the
Section 10(a) Prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of
Form S-8.
Page 3 of 8
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Digital Video Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(i) the Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1997;
(ii) the Registrant's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1997;
(iii) the Registrant's Current Reports on Form 8-K filed on August 15,
1997 and September 26, 1997 (as amended by a Form 8-K/A filed on
October 10, 1997);
(iv) the Registrant's definitive Proxy Statement filed on August 12, 1997
pursuant to Section 14(a) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); and
(v) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since March 31, 1997.
(vi) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form SB-2 (Registration No.
333-2228), as filed with the Commission on March 8, 1996; as amended
by Amendment No. 1, as filed with the Commission on April 23, 1996;
and as further amended by Amendment No. 2 as filed with the
Commission on May 8, 1996 and any amendment or report subsequently
filed by the Registrant for the purpose of updating that description.
In addition, any document 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, but prior to the filing of a post-effective amendment to this
Registration Statement which indicates that all shares of the Registrant's
Common Stock registered hereunder have been sold or that deregisters all such
shares of Common Stock then remaining unsold, will 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, all or a portion of
which is 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 such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute
a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Counsel for the Registrant, Troy & Gould Professional Corporation, 1801
Century Park East, Los Angeles, California, has rendered an opinion to the
effect that the securities offered hereby, when sold and paid for, will be duly
and validly issued, fully paid and nonassessable. Joseph F. Troy, a member of
Troy & Gould Professional Corporation, is a director of the Registrant and has
been granted options to purchase 136,608 shares of the Registrant's Common Stock
at $3.50 per share. In addition, members of Troy & Gould Professional
Corporation own in the aggregate 700 of the Registrant's Class B Warrants.
Page 4 of 8
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Registrant's Bylaws also provide that the Registrant will indemnify
its directors and officers and may indemnify its employees and other agents to
the fullest extent not prohibited by Delaware law.
The Registrant's Certificate of Incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its shareholders. These provisions do not eliminate
the directors' duty of care and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its affiliated enterprises, provided such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
The Registrant also maintains certain insurance policies that insure its
officers and directors against certain liabilities incurred in their capacities
as officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following exhibits included herewith or incorporated herein by
reference are made part of this Registration Statement:
4.1 Specimen Common Stock certificate (filed with the Commission on May 8,
1996 as Exhibit 4.1 to Amendment No. 2 to the Registrant's
Registration Statement on Form SB-2 (Reg. No. 333-2228-LA) and
incorporated herein by reference).
5.1 Opinion of Troy & Gould Professional Corporation regarding the
legality of the securities registered hereunder.
23.1 Consent of Ernst & Young LLP (San Jose).
23.2 Consent of Ernst & Young LLP (Chicago).
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Troy & Gould Professional Corporation (contained in
Exhibit 5).
24.1 Power of Attorney (contained in Part II).
Page 5 of 8
<PAGE>
ITEM 9. UNDERTAKINGS
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 to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events arising after the
effective date of the 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 the registration statement;
and
(iii) Include any material information with respect to the plan of
distribution not previously disclosed in the registration statement:
provided, however, that paragraphs (1)(i) and (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 by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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 which remain unsold at the termination of the
offering.
(4) 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.
(5) 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.
Page 6 of 8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Los Gatos, State of California on October 31, 1997.
DIGITAL VIDEO SYSTEMS, INC.
By: /s/ Dr. Edmund Y. Sun
--------------------------------------
Dr. Edmund Y. Sun,
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Dr. Edmund Y. Sun and Thomas R. Parkinson, and
each of them, his true and lawful attorneys-in-fact and agents, 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 and about the
premises, 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 or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Dr. Edmund Y. Sun Chairman of the Board and Chief October 31, 1997
_______________________ Executive Officer (Principal Executive
Dr. Edmund Y. Sun Officer)
/s/ Thomas R. Parkinson President, Chief Operating Officer, October 31, 1997
_______________________ Principal Financial Officer and Director
Thomas R. Parkinson
Director October , 1997
_______________________
Sanford Sigoloff
/s/ Sung Hee Lee Director October 31, 1997
_______________________
Sung Hee Lee
/s/ Philip B. Smith Director October 31, 1997
_______________________
Philip B. Smith
/s/ Joseph F. Troy Director October 31, 1997
_______________________
Joseph F. Troy
/s/ Robert Baker Controller October 31, 1997
_______________________
Robert Baker
</TABLE>
Page 7 of 8
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Number Page
- -------------- ----
4.1 Specimen Common Stock certificate (filed with the Commission on
May 8, 1996 as Exhibit 4.1 to Amendment No. 2 to the Registrant's
Registration Statement on Form SB-2 (Reg. No. 333-2228-LA) and
incorporated herein by reference).
5.1 Opinion of Troy & Gould Professional Corporation regarding the
legality of the securities registered hereunder.
23.1 Consent of Ernst & Young LLP (San Jose).
23.2 Consent of Ernst & Young LLP (Chicago).
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of Troy & Gould Professional Corporation (contained in
Exhibit 5).
24.1 Power of Attorney (contained in Part II).
Page 8 of 8
<PAGE>
EXHIBIT 5.1
October 31, 1997
DIG3-4
Digital Video Systems, Inc.
160 Knowles Road
Los Gatos, California 95030
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") of Digital Video Systems, Inc. (the "Company"),
and the exhibits filed in connection therewith, which you are filing with the
Securities and Exchange Commission (the "SEC") in connection with the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of up to (i) 2,825,852 shares of the Company's common stock, par value
$0.0001 per share ("Common Stock") issuable upon the exercise of options
previously granted and available for grant under the Company's 1993 Amended and
Restated Stock Option Plan (the "1993 Plan"); (ii) 1,500,000 shares of Common
Stock issuable upon the exercise of options previously granted and available for
grant under the Company's 1996 Stock Option Plan (the "1996 Plan"); and (iii)
500,000 shares of Common Stock issuable upon the purchase of shares of Common
Stock which may be sold under the Company's 1997 Employee Stock Purchase Plan
(the "1997 Plan," and together with the 1993 Plan and the 1996 Plan, the
"Plans").
For purposes of this opinion, we have examined such matters of law and
originals, or copies certified or otherwise identified to our satisfaction, of
the Plans and of such documents, corporate records and other instruments
relating to the adoption and implementation of the Plans as we have deemed
necessary. In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as certified,
photostatic or conformed copies, and the authenticity of originals of all such
latter documents. We have also assumed the due execution and delivery of all
documents where due execution and delivery are prerequisites to the
effectiveness thereof.
<PAGE>
Digital Video Systems, Inc.
October 31, 1997
Page 2
Based on the foregoing examination, we are of the opinion that (i) the
shares of Common Stock issuable upon exercise of stock options granted or to be
granted pursuant to the 1993 Plan and the 1996 Plan are duly authorized and,
when issued and paid for in accordance with the 1993 Plan and the 1996 Plan,
respectively, will be validly issued, fully paid and nonassessable; and (ii) the
shares of Common Stock issuable under 1997 Plan are duly authorized, and when
issued and paid for in accordance with the 1997 Plan, will be validly issued,
fully paid and nonassessable.
We consent to the use of our name under Part II, Item 5 of the Registration
Statement, and to the filing of this opinion as an exhibit to the Registration
Statement. By giving you this opinion and consent, we do not admit that we are
experts with respect to any part of the Registration Statement or Prospectus
within the meaning of the term "expert" as used in Section 11 of the Securities
Act, or the rules and regulations promulgated thereunder, nor do we admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
/s/ TROY & GOULD
TROY & GOULD
Professional Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1993 Stock Option Plan, 1996 Stock Option Plan and
1997 Employee Stock Purchase Plan of Digital Video Systems, Inc. of our report
dated May 1, 1997 with respect to the consolidated financial statements of
Digital Video Systems, Inc. included in its Annual Report (Form 10-KSB) for the
year ended March 31, 1997, filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG
San Jose, California
October 30, 1997
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1993 and 1996 Stock Option Plans and the 1997
Employee Stock Purchase Plan of Digital Video Systems, Inc. of our report dated
August 21, 1997, with respect to the financial statements of Arris
Interactive LLC - Digital Video Division for the year ended December 31, 1995
included in the Current Report on Form 8-K/A of Digital Video Systems, Inc.
dated October 10, 1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
October 27, 1997
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Digital Video Systems, Inc. on Form S-8 of our report dated August 8, 1997 on
the financial statements of Arris Interactive LLC - Digital Video Division for
the year ended December 31, 1996, appearing in the Form 8-K/A of Digital Video
Systems, Inc. filed on October 10, 1997.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
October 31, 1997
