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As filed with the Securities and Exchange Commission on November 7, 1997
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
---------------------------------
INTERNATIONAL MANUFACTURING SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0393609
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2071 Concourse Drive
San Jose, California 95131
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------------------
1996 Stock Option Plan
1997 Stock Plan
1997 Employee Stock Purchase Plan
1997 Non-U.S. Employee Stock Purchase Plan
1997 Director Option Plan
(Full title of the plans)
---------------------------------
Nathan Kawaye
Chief Financial Officer
International Manufacturing Services, Inc.
2071 Concourse Drive
San Jose, California 95131
(408) 953-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------------
Copy to:
Robert G. Day, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Offering Registration
to be Registered Registered Per Share Price Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock (par value $0.001 per
share) to be issued upon exercise of options
granted under the 1996 Stock Option Plan 2,929,500 $1.11 (1) $ 3,251,745 $ 985.38
Class A Common Stock (par value $0.001 per
share) reserved for issuance under the 1996
Stock Option Plan 385,500 $10.0938 (2) $ 3,891,159.90 $ 1,179.14
Class A Common Stock (par value $0.001 per
share) to be issued upon exercise of options
granted under the 1997 Stock Plan 1,117,000 $11.50 (3) $12,845,500 $ 3,892.76
Class A Common Stock (par value $0.001 per
share) reserved for issuance under the 1997
Stock Plan 633,000 $10.0938 (2) $ 6,389,375.40 $ 1,936.17
Class A Common Stock (par value $0.001 per
share) reserved for issuance pursuant to the
1997 Employee Stock Purchase Plan 250,000 $8.5797 (4) $ 2,144,925 $ 649.98
Class A Common Stock (par value $0.001 per
share) reserved for issuance pursuant to the
1997 Non-U.S. Employee Stock Purchase Plan 250,000 $8.5797 (4) $ 2,144,925 $ 649.98
Class A Common Stock (par value $0.001 per
share) to be issued pursuant to the 1997
Director Option Plan 70,000 $11.50 (5) $ 805,000 $ 243.94
Class A Common Stock (par value $0.001 per
share) reserved for issuance under the 1997
Director Option Plan 155,000 $10.0938 (2) $ 1,564,539 $ 474.10
- ---------------------------------------------------------------------------------------------------------------------------
Total 5,790,000 $33,037,319.30 $ 10,011.49
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</TABLE>
(1) Under the 1996 Stock Option Plan (the "OPTION PLAN"), 2,929,500 shares
are subject to outstanding options to purchase Class A Common Stock. The
Proposed Maximum Offering Price Per Share with respect to such 2,929,500
shares was estimated pursuant to Rule 457(h) by reference to the
exercise price of such options. The weighted average exercise price of
such 2,929,500 shares subject to outstanding options under the Option
Plan is $1.11.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The Proposed Maximum Offering Price
Per Share was determined by reference to the fair market value of the
Class A Common Stock (the "FMV"), or, the average of the high and low
sale prices reported in the Nasdaq National Market on November 7, 1997.
(3) Under the 1997 Stock Plan (the "PLAN"), 1,117,000 shares are subject to
outstanding options to purchase Class A Common Stock. The Proposed
Maximum Offering Price Per Share with respect to such 1,117,000 shares
was estimated pursuant to Rule 457(h) by reference to the weighted
average exercise price of such options, which is $11.50.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The Proposed Maximum Offering Price
Per Share was determined to be 85% of the FMV.
(5) Under the 1997 Director Option Plan (the "OPTION PLAN"), 70,000 shares
are subject to outstanding options to purchase Class A common Stock. The
Proposed Maximum Offering Price Per Share with respect to such 70,000
shares was estimated pursuant to Rule 457(h) by reference to the
weighted average exercise price of such options, which is $11.50.
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INTERNATIONAL MANUFACTURING SERVICES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "COMMISSION") by International
Manufacturing Services, Inc. (the "REGISTRANT"):
1. The Registrant's Registration Statement on Form S-1 (File No.
333-34557), as amended (the "REGISTRATION STATEMENT"), filed
pursuant to the Securities Act of 1933, as amended (the
"SECURITIES ACT"), relating to the Company's initial public
offering of its Class A Common Stock (the "OFFERING").
2. The description of Registrant's Class A Common Stock contained
in the Registrant's Registration Statement on Form 8-A (File No.
000-1018797) pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing of
a post-effective amendment which indicates that all securities offered hereunder
have been sold or which de-registers all securities then remaining unsold under
this registration statement, shall be deemed to be incorporated by reference
herein 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.
The validity of the issuance of shares of Class A Common Stock offered
pursuant to the Offering will be passed upon for the Registrant by Wilson
Sonsini Goodrich & Rosati, Professional Corporation ("WSGR"), Palo Alto,
California. Jeffrey D. Saper, a member of WSGR, is Secretary of the Company. As
of October 22, 1997, the effective date of the Registration Statement on Form
S-1, Mr. Saper beneficially owned 23,945 shares of Class A Common Stock and a
$31,875 principal amount 12% junior subordinated note, and certain members of
WSGR, and investment partnerships of which such persons are partners,
beneficially owned 23,006 shares of Class A Common Stock and $30,625 principal
amount 12% junior subordinated notes.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's certificate of incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach or
alleged breach of their duty of care to the Company or its stockholders. In
addition, as permitted by Section 145 of the Delaware General Corporation Law,
the certificate of incorporation of the Registrant provides, inter alia, that
each person who is made a party or is threatened to be made a party to or
otherwise involved in any action, suit or proceeding, whether
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civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
Company or, while a director or officer of the Company, is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director or officer, shall be indemnified and held harmless by the
Company to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended, against all expense,
liability and loss (including attorney's fees, judgements, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee's heirs, executors and administrators;
provided, however, that, except with respect to the proceedings brought by an
indemnitee to enforce rights to indemnification (subject to certain restrictions
and as more fully described in the Registrant's certificate of incorporation),
the Company shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or any
part thereof) was authorized by the Board of Directors of the Company. The right
to indemnification conferred in the Registrant's certificate of incorporation
includes the right to be paid by the Company the expenses incurred in connection
with any such proceeding in advance of its final disposition; provided, however,
that, if and to the extent that the Delaware General Corporation Law requires,
such an advancement of expenses incurred by an indemnitee in his or her capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service with respect to an employee benefit plan, shall be made only
upon delivery to the Company of an undertaking by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses
under the Company's certificate of incorporation or otherwise.
The Registrant's policy is to enter into indemnification
agreements with each of its directors and executive officers that provide the
maximum indemnity allowed directors and executive officers by Section 145 of the
Delaware General Corporation Law and the bylaws, as well as certain additional
procedural protections. The indemnity agreements provide that all directors and
executive officers will be indemnified to the fullest possible extent not
prohibited by law against all expenses (including attorney's fees) and
settlement amounts paid or incurred by them in any action or proceeding,
including any derivative action by or in the right of the Registrant, on account
of their services as directors or executive officers of the Registrant or as the
directors or officers of any other Company or enterprise when they are serving
in such capacities at the request of the Registrant. Pursuant to the indemnity
agreements, the Company will not be obligated to indemnify or advance expenses
to an indemnified party with respect to proceedings or claims initiated by the
indemnified party and not by way of defense, except with respect to proceedings
specifically authorized by the Board of Directors or brought to enforce a right
of indemnification under such indemnity agreement, the Company's certificate of
incorporation, bylaws or any statute or law, or as otherwise required by Section
145 of the Delaware General Corporation Law. Also under the indemnity
agreements, the Company is not obligated to indemnify the indemnified party for
(i) any expenses incurred by the indemnified party with respect to any
proceeding instituted by the indemnified party to enforce or interpret the
agreement, if a court of competent jurisdiction determines that each of the
material assertions made by the indemnified party in such proceeding was not
made in good faith or was frivolous, (ii) acts, omissions or transactions on the
part of the indemnified party from which such party may not be relieved of
liability under applicable law, or (iii) expenses and the payment of profits
arising from the purchase and sale by the indemnified party of securities in
violation of Section 16(b) of the Exchange Act, or any similar successor
statute.
The indemnification provisions in the certificate of incorporation and
the indemnification agreements entered into by and between the Registrant and
its directors and officers, may be sufficiently broad to permit indemnification
of the Registrant's officers and directors for liabilities arising under the
1933 Act.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
-------
4.1* Form of Class A Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.2* 1996 Stock Option Plan and Form of Stock Option Agreement
thereunder.
10.3* 1997 Stock Plan and Form of Stock Option Agreement thereunder.
10.4* 1997 Employee Stock Purchase Plan and Form of Participation
Agreement thereunder.
10.5* 1997 Non-U.S. Employee Stock Purchase Plan and Form of
Participation Agreement thereunder.
10.6* 1997 Director Option Plan and Form of Director Option Agreement
thereunder.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP, Independent Accountants.
23.3 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (Please see page II-5).
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* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 333-34557), as amended, which was declared effective by the
Commission on October 22, 1997.
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 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.
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(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 the 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 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.
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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, thereunto, duly
authorized, in the City of San Jose, State of California, on November 12, 1997.
INTERNATIONAL MANUFACTURING SERVICES, INC.
By: /s/ Robert G. Behlman
-----------------------------------------
Robert G. Behlman, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Robert G. Behlman and Nathan Kawaye, and
each of them acting individually, as 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 and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or any substitute, 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 BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------- --------------------------------------- -----------------
<S> <C> <C>
/s/ Robert G. Behlman Chairman of the Board, President and November 12, 1997
- --------------------------------------
Robert G. Behlman Chief Executive Officer (Principal
Executive Officer)
/s/ Nathan Kawaye Vice President, Finance and Chief November 12, 1997
- -------------------------------------- Financial Officer (Principal Financial
Nathan Kawaye and Accounting Officer)
/s/ William J. Almon Director November 12, 1997
- --------------------------------------
William J. Almon
/s/ Dixon R. Doll Director November 12, 1997
- --------------------------------------
Dixon R. Doll
/s/ John A. Downer Director November 12, 1997
- --------------------------------------
John A. Downer
/s/ Fredric W. Harman Director November 12, 1997
- --------------------------------------
Fredric W. Harman
/s/ Mark Rossi Director November 12, 1997
- --------------------------------------
Mark Rossi
/s/ J. Larry Smart Director November 12, 1997
- --------------------------------------
J. Larry Smart
/s/ Paul J. Tufano Director November 12, 1997
- --------------------------------------
Paul J. Tufano
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------------------
EXHIBITS
-----------------------------
REGISTRATION STATEMENT ON FORM S-8
INTERNATIONAL MANUFACTURING SERVICES, INC.
<PAGE> 9
INDEX TO EXHIBITS
Exhibit
Number Description
------ -----------
4.1* Form of Class A Common Stock Certificate.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
10.2* 1996 Stock Option Plan and Form of Stock Option Agreement
thereunder.
10.3* 1997 Stock Plan and Form of Stock Option Agreement thereunder.
10.4* 1997 Employee Stock Purchase Plan and Form of Participation
Agreement thereunder.
10.5* 1997 Non-U.S. Employee Stock Purchase Plan and Form of
Participation Agreement thereunder.
10.6* 1997 Director Option Plan and form of Director Option Agreement
thereunder.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP, Independent Accountants.
23.3 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (please see page II-5).
- ----------
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 333-34557), as amended, which was declared effective by the
Commission on October 22, 1997.
<PAGE> 1
EXHIBIT 5.1
November 12, 1997
International Manufacturing Services, Inc.
2071 Concourse Drive
San Jose, California 95131
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 November 12, 1997
(Registration No. 333-_________) (the "Registration Statement"), in connection
with your registration of 5,790,000 shares of your Class A Common Stock, $0.001
par value per share (the "Shares"). 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.
It is our opinion that, upon completion of the proceedings being taken
or contemplated by us, as your legal counsel, to be taken prior to the issuance
of the Shares, including the proceedings being taken in order to permit such
transaction to be carried out in accordance with applicable sate securities
laws, the Shares, when issued and sold in the manner described in the
Registration Statement and in accordance with the resolutions adopted by your
Board of Directors, 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 appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 3, 1997, except for note 14,
which is as of September 16, 1997, which appears on page F-2 of the Registration
Statement on Form S-1 dated October 22, 1997 of International Manufacturing
Services, Inc., which is incorporated in this Registration Statement on Form
S-8. We also consent to the application of such report to the Financial
Statement Schedule for the year ended April 30, 1997, listed under item 16(b) of
the Registration Statement on Form S-1, when such schedule is read in
conjunction with the financial statements referred to in our report. The audit
referred to in such report also included this schedule.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
San Jose, California
November 7, 1997
<PAGE> 1
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Stock Option Plan, the 1997 Stock Plan, the
1997 Employee Stock Purchase Plan, the 1997 Non-U.S. Employee Stock Purchase
Plan and the 1997 Director Option Plan of our report dated April 25, 1996,
except for Note 14 as to which the date is September 16, 1997 with respect to
the consolidated financial statements and schedule of International
Manufacturing Services, Inc. for the year ended March 31, 1996 included in its
Registration Statement Amendment No. 3 on Form S-1 (No. 333-34557), filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
------------------------------
San Jose, California
November 10, 1997
