<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 27, 1996.
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BOREALIS TECHNOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 88-0238203
- ----------------------- ----------
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
923 TAHOE BLVD, SUITE 211
INCLINE VILLAGE, NEVADA 89451
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1994 STOCK PLAN
1996 STOCK PLAN
1996 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLAN)
CURTIS M. FAITH
BOREALIS TECHNOLOGY CORPORATION
923 TAHOE BLVD., SUITE 211
INCLINE VILLAGE, NEVADA 89451
(702) 832-0300
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
STEVE BOCHNER
TODD CLEARY
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) SHARE PRICE FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 477,973 shares $4.78125 $2,285,308.41 $788.04
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</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(a).
<PAGE> 2
BOREALIS TECHNOLOGY CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Final Prospectus dated June 21, 1996, filed with
the Commission pursuant to Rule 424(b) of the Securities Act of 1933, as amended
(the "Securities Act").
(b) The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended June 30, 1996
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form SB-2 (File No. 333-4792-LA) initially filed by
the Registrant with the Commission on May 2, 1996, as amended by Amendment No. 1
to such Registration Statement filed with the Commission on May 9, 1996, as
amended by Amendment No. 2 to such Registration Statement filed with the
Commission on June 3, 1996, as amended by Amendment No. 3 to such Registration
Statement filed with the Commission on June 19, 1996, and any further amendment
or report filed hereafter 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 Exchange Act subsequent to the filing of this
Registration Statement, and 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 in the Registration Statement and to be 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 authorizes a court
to award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act. The Registrant's Certificate of
Incorporation and Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by Delaware law,
including circumstances in which indemnification is otherwise discretionary
under Delaware law.
<PAGE> 3
The Registrant currently carries indemnity insurance pursuant to which
its directors and officers are insured under certain circumstances against
certain liabilities or losses, including liabilities under the Securities Act.
The Registrant has entered into indemnity agreements with certain directors and
executive officers. These agreements, among other things, indemnify the
directors and executive officers for certain expenses (including attorneys'
fees), judgments, fines, and settlement payments incurred by such persons in any
action, including any action by or in the right of the Registrant, in connection
with the good faith performance of their duties as a director or officer. The
indemnification agreements also provide for the advance payment by the
Registrant of defense expenses incurred by the director or officer; however, the
affected director or officer must undertake to repay such amounts advanced if it
is ultimately determined that such director or officer is not entitled to be
indemnified.
At present, there is no pending litigation involving a director or
officer of the Registrant in which indemnification is required or permitted, and
the Registrant is not aware of any threatened litigation or proceeding that may
result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C. with respect to the
securities being registered.
10.1* 1994 Stock Plan.
10.2* 1996 Stock Plan.
10.3* 1996 Director Option Plan.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
</TABLE>
* Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form SB-2 (File No. 333-4792-LA) as declared effective
by the Securities and Exchange Commission on June 20, 1996.
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 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, 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 the time shall be deemed to be the initial bona
fide offering thereof.
II-2
<PAGE> 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.
(b) 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 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 an initial bona
fide offering thereof.
(c) 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 California General Corporations Code, the
Certificate of Incorporation of the Registrant, the Bylaws of the Registrant,
Indemnification Agreements entered into between the Registrant and it officers
and directors, 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 the
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 the such issue.
II-3
<PAGE> 5
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 requirement for filing on Form S-8 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Incline Village, State of Nevada, on this 26th day of
September, 1996.
BOREALIS TECHNOLOGY CORPORATION
By: /s/ Curtis Faith
----------------------------------------
Curtis Faith
President, Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, jointly and severally, Curtis Faith and
Timothy Arnold, and each one of them, individually and without the other, his or
her attorney-in-fact, each with full power of substitution, for him or her 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 Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
or her 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 indicated.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Curtis Faith President, Chief Executive Officer and Chairman of the Board
- -----------------------------
Curtis Faith
/s/ Timothy Arnold Vice President, Operations and Finance (principal financial and accounting
- ----------------------------- officer)
Timothy Arnold
/s/ Ed Esber Director
- -----------------------------
Ed Esber
/s/ Patrick Grady Director
- -----------------------------
Patrick Grady
/s/ Peter Pitsker Director
- -----------------------------
Peter Pitsker
/s/ Shekar M. Swamy Director
- -----------------------------
Shekar M. Swamy
</TABLE>
II-4
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Exhibit 5.1
September 26, 1996
Borealis Technology Corporation
923 Tahoe Blvd., Suite 211
Incline Village, Nevada 89451
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about September 27, 1996
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 477,973 shares of your
Common Stock (the "Shares") reserved for issuance under the 1994 Stock Plan, the
1996 Stock Plan and the 1996 Director Option Plan, (collectively, the "Plans").
As your legal counsel, we have examined the proceedings taken and are familiar
with the proceedings proposed to be taken by you in connection with the sale and
issuance of the Shares under the Plans.
It is our opinion that, when issued and sold in the manner referred to
in the Plans and pursuant to the respective agreements which accompany each
grant under the Plans, the Shares will be legally and validly issued, fully paid
and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement and any amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the 1994 Stock Plan, the 1996 Stock Plan and
the 1996 Director Option Plan of Borealis Technology Corporation of our report
dated April 9, 1996 (except as to Note 8, as to which the date is April 22,
1996) with respect to the financial statements for the year ended December 31,
1995 of Borealis Technology Corporation included in its Registration Statement
(Form SB-2 No. 333-4792-LA), filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
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Ernst & Young LLP
Reno, Nevada
September 25, 1996
