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As filed with the Securities and Exchange Commission on July 7, 1997
Registration No. 333-20031
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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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NEOMAGIC CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0344424
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(State of incorporation) (I.R.S. Employer Identification No.)
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3620 Jay Street
Santa Clara, CA 95054
(Address, including zip code, of principal executive offices)
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AMENDED 1993 STOCK PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
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Prakash Agarwal
President and Chief Executive Officer,
NEOMAGIC CORPORATION
3620 Jay Street
Santa Clara, CA 95054
(Name and address of agent for service)
(408) 988-7020
(Telephone number, including area code, of agent for service)
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Copy to:
MICHAEL J. DANAHER, ESQ.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF AMOUNT PROPOSED PROPOSED AMOUNT OF
SECURITIES TO TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value, to be
issued upon exercise of options
granted under the Amended 1993 Stock
Plan 4,853,283 $11.36(1) $55,133,295 $16,707
Common Stock, $0.01 par value, to be
issued upon exercise of options
granted under 1997 Employee Stock
Purchase Plan 500,000 $20.38(2) $10,190,000(4) $ 3,088
Total $65,786,798 $ 19,795
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(1) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), and, in part, pursuant to Rule 457(c) under the
Securities Act. With respect to the 2,838,250 shares which are subject
to outstanding options to purchase Common Stock under the Amended 1993
Stock Plan (the "Option Plan"), the Proposed Maximum Offering Price Per
Share was estimated pursuant to Rule 457(h) under which Rule the per
share price of options to purchase stock under an employee stock option
plan may be estimated by reference to the exercise price of such
options. The weighted average exercise price of the 2,838,250 shares
subject to outstanding options under the Option Plan is $4.96. With
respect to the 2,015,033 shares of Common Stock available for future
grant under the Option Plan, the estimated Proposed Maximum Offering
Price Per Share was estimated pursuant to Rule 457(c) whereby the per
share price was determined by reference to the average between the high
and low price of the Registrant's stock as reported in the Nasdaq
National Market on June 27, 1997, which average was $20.38. The number
referenced above in the table entitled "Proposed Maximum Offering Price
Per Share" represents a weighted average of the foregoing estimates
calculated in accordance with Rules 457(h) and 457(c).
(2) With respect to the 500,000 shares of Common Stock available for future
grant under the 1997 Employee Stock Purchase Plan, the estimated
Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(c) whereby the per share price was determined by reference to
the average between the high and low price of the Registrant's stock as
reported in the Nasdaq National Market on June 27, 1997, which average
was $20.38.
(3) The Proposed Maximum Aggregate Offering Price was estimated pursuant to
Rule 457(h) under the Securities Act based on the aggregate exercise
price of options as described in note 1.
(4) The Proposed Maximum Aggregate Offering Price was estimated pursuant
to Rule 457(h) under the Securities Act based on the aggregate exercise
price of options as described in note 2.
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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 heretofore filed with the
Securities and Exchange Commission:
(a) The audited financial statements for the Registrant's fiscal year
ended January 31, 1997, contained in the Prospectus filed pursuant to Rule
424(b)(4) on March 14, 1997 pursuant to the Securities Act.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1997, filed with the Securities Exchange Commission on June 3,
1997, pursuant to Section 13 of the Exchange Act.
(c) The description of the Registrant's Common Stock to be offered
hereby is contained in the Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on January 17, 1997 pursuant to
Section 12(b) of the Exchange Act, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Registrant 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 part hereof from the date of
filing such documents.
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 Restated Certificate of Incorporation limits, to the
maximum extent permitted by Delaware law, the personal liability of directors
for monetary damages for breach of their fiduciary duties as a director. The
Registrant's Bylaws provide that the Registrant shall indemnify its officers and
directors and may indemnify its employees and other agents to the fullest extent
permitted by Delaware law. The Registrant has entered into indemnification
agreements with its officers and directors containing provisions which are in
some respects broader than the specific indemnification provisions contained in
the Delaware General Corporation Law. The indemnification agreements require the
Registrant, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature), to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified, and to obtain
directors' and officers' insurance, if available on reasonable terms. The
Registrant believes that these agreements are necessary to attract and retain
qualified persons as directors and officers, and the Registrant has obtained
directors' and officers' insurance.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify a director, officer, employee or agent made a party to
an action by reason of that fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation, against expenses actually and reasonable incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and with respect to any criminal action, had no reasonable cause
to believe his or her conduct was unlawful.
II-1
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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Exhibit Number
4.1* Form of Registrant's Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.,
as to legality of securities being registered
10.2* Amended and Restated 1993 Stock Plan and related agreements
10.3* 1997 Employee Stock Purchase Plan, with exhibits thereto
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-3)
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* Incorporated herein by reference to the Registrant's Registration Statement on
Form S-1 (Commission File Number 333-20031) in the form declared effective on
March 13, 1997.
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 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.
(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 Santa Clara, State of California, on June 30, 1997.
NEOMAGIC CORPORATION
By: /s/ Merle McClendon
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Merle McClendon, Chief Financial Officer
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Prakash Agarwal and Merle McClendon and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this Registration Statement on Form
S-8 and to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, or their or his or her substitutes, shall 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.
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Signature Title Date
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<S> <C> <C>
/s/Prakash Agarwal President, Chief Executive Officer June 30, 1997
---------------------- and Director
Prakash Agarwal (Principal Executive Officer)
/s/Merle McClendon Chief Financial Officer June 30, 1997
---------------------- (Principal Financial and Accounting
Merle McClendon Officer)
/s/Kamran Elahian Director June 30, 1997
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Kamran Elahian
/s/Irwin Federman Director June 30, 1997
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Irwin Federman
/s/James Lally Director June 30, 1997
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James Lally
/s/Michael Moritz Director June 30, 1997
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Michael Moritz
/s/Brian Dougherty Director June 30, 1997
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Brian Dougherty
</TABLE>
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NEOMAGIC CORPORATION
REGISTRATION STATEMENT ON FORM S-8
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Page
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4.1* Form of Registrant's Common Stock Certificate
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.,
as to legality of securities being registered
10.2* Amended and Restated 1993 Stock Plan and related
agreements
10.3* 1997 Employee Stock Purchase Plan, with exhibits thereto
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-3)
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* Incorporated herein by reference to the Registrant's Registration Statement on
Form S-1 (Commission File Number 333-20031) in the form declared effective on
March 13, 1997.
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EXHIBIT 5.1
July 7, 1997
NeoMagic Corporation
3260 Jay Street
Santa Clara, CA 95054
RE: REGISTRATION STATEMENT OF FORM S-8
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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 June 30, 1997 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 5,353,283 shares of your
Common Stock (the "Shares") reserved for issuance under the Amended 1993 Stock
Plan and the 1997 Employee Stock Purchase 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
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Amended 1993 Stock Plan and 1997
Employee Stock Purchase Plan of NeoMagic Corporation of our report dated
February 14, 1997, except for Note 10 as to which the date is February 26, 1997,
with respect to the consolidated financial statements and schedule of NeoMagic
Corporation included in the Registration Statement on Form S-1 (No. 333-20031)
for the year ended January 31, 1997, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
July 2, 1997
