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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 23, 1998
REGISTRATION NO.
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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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FAROUDJA, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 77-0444978
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
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750 PALOMAR AVENUE, SUNNYVALE, CALIFORNIA 94086
(Address of Registrant's Principal Executive Offices) (Zip Code)
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FAROUDJA, INC. 1995 STOCK OPTION PLAN
FAROUDJA, INC. 1997 PERFORMANCE STOCK OPTION PLAN
FAROUDJA, INC. 1997 NON-EMPLOYEE DIRECTORS STOCK OPTION PLAN
FAROUDJA, INC. 1997 AMENDED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
KENNETH S. BOSCHWITZ
VICE PRESIDENT-BUSINESS DEVELOPMENT
AND GENERAL COUNSEL
FAROUDJA, INC.
750 PALOMAR AVENUE
SUNNYVALE, CALIFORNIA 94086
(408) 735-1492
(Name, address and telephone number of agent for service)
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WITH A COPY TO:
MARK A. BONENFANT, ESQ.
BUCHALTER, NEMER, FIELDS & YOUNGER,
A PROFESSIONAL CORPORATION
601 South Figueroa Street, Suite 2400
Los Angeles, California 90017
(213) 891-0700
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER OFFERING AMOUNT OF
REGISTERED REGISTERED (1) UNIT (2) PRICE REGISTRATION FEE
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Common Stock, $0.001 par value per
share........................... 1,225,000 shares $ 9.06 $ 11,098,500 $ 3,275
Common Stock, $0.001 par value per
share........................... 100,000 shares 9.06 906,000 268
Common Stock, $0.001 par value per
share........................... 725,000 shares 9.06 6,568,500 1,938
Common Stock, $0.001 par value per
share........................... 400,000 shares 9.06 3,624,000 1,070
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933, as
amended, this registration statement also covers any additional securities
to be offered or issued in connection with a stock split, stock dividend or
similar transaction.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and is calculated based on the closing price of the Company's
Common Stock on the NASDAQ Stock Market on April 17, 1998.
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PART II--INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed or to be filed by Faroudja, Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K as filed with the Commission
for the year ended December 31, 1997;
(b) The description of the Common Stock of the Registrant contained in the
Company's Registration Statement on Form 8-A (Reg. No. 0-23104), filed by the
Company on September 19, 1997 pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including any amendment
or report filed for the purpose of updating such description.
All other documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment to this
Registration Statement 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 this Registration Statement and to be a part
hereof from the respective dates 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
superceded for purposes of this Registration Statement to the extent that a
statement contained in any subsequently filed documents which also is or is
deemed to be incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed upon for the
Company by Buchalter, Nemer, Fields & Younger, a Professional corporation, Los
Angeles, California. Stuart D. Buchalter, of counsel to Buchalter, Nemer, Fields
& Younger, is one of the Company's directors and beneficially owns 10,197 shares
of Common Stock and options to purchase 6,515 shares of Common Stock granted
pursuant to the 1997 Non-Employee Directors Stock Option Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Delaware General Corporation Law, the Company's
Certificate of Incorporation limits the personal liability of a director of the
Company for monetary damages for breach of fiduciary duty of care as a director.
Liability is not eliminated for (i) any breach of the director's duty of loyalty
to the Company or its stockholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii)
unlawful payment of dividends or stock purchases or redemptions pursuant to
Section 174 of the Delaware General Corporation Law; or (iv) any transaction
from which the director derived an improper personal benefit.
The Company's By-Laws provide that the Company shall indemnify its officers
and directors and may indemnify its employees and other agents to the fullest
extent permitted under Delaware Law, including in those circumstances where
indemnification would otherwise be discretionary. The Company believes that
indemnification under its By-Laws covers at least negligence and gross
negligence on the part of indemnified parties. The By-Laws authorize the use of
indemnification agreements, and the Company has entered into indemnification
agreements with each of its officers and directors that are in some respects
broader than the specific indemnification provisions contained in Delaware Law.
The indemnification agreements may require the Company, among other things, to
indemnify such directors against certain
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liabilities that may arise by reason of their status or service as directors
(other than liabilities arising from willful misconduct of a culpable nature)
and to advance expenses reasonably expected to be incurred in defending any
proceeding against them for which they would receive indemnification. The
Company has obtained directors and officers liability insurance with respect to
certain matters, including matters arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement. Certain documents previously filed with the Commission are
incorporated in this Registration Statement by reference.
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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5.1 -- Opinion of Buchalter, Nemer, Fields & Younger, a Professional Corporation
23.1 -- Consent of Ernst & Young LLP, Independent Auditors
23.2 -- Consent of Buchalter, Nemer, Fields & Younger, a Professional Corporation (included in its opinion
filed as Exhibit 5.1)
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ITEM 9. 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 of 1933;
(ii) To 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. 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) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) 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.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
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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. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expense
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 of whether such indemnification by it is against
public policy as expressed in the 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 Sunnyvale, state of California on this 23rd day of
April, 1998.
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FAROUDJA, INC.
By: /s/ MICHAEL J. MOONE
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Michael J. Moone
PRESIDENT
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Pursuant to the requirements of the Securities Act of 1933, this
registration has been signed by the following persons in the capacities and on
the date indicated.
POWER ATTORNEY
NAME TITLE DATE
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/s/ MICHAEL J. MOONE
- ------------------------------ Chief Executive Officer, April 23, 1998
Michael J. Moone President and Director
/s/ MICHAEL C. HOBERG
- ------------------------------ Vice President-Finance and April 23, 1998
Michael C. Hoberg Chief Financial Officer
Chief Technical Officer,
Director and Chairman of
- ------------------------------ the Executive Committee,
Yves Faroudja Secretary
/s/ MERV L. ADELSON
- ------------------------------ Director April 23, 1998
Merv L. Adelson
/s/ STUART D. BUCHALTER
- ------------------------------ Director April 23, 1998
Stuart D. Buchalter
- ------------------------------ Director
Kevin B. Kimberlin
/s/ MATTHEW D. MILLER
- ------------------------------ Director April 23, 1998
Matthew D. Miller
/s/ WILLIAM N. SICK
- ------------------------------ Director April 21, 1998
William N. Sick
/s/ WILLIAM J. TURNER
- ------------------------------ Director April 23, 1998
William J. Turner
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EXHIBIT 5.1
File Number: F1088-0017
Direct Dial Number: (213) 891-5020
E-Mail Address: [email protected]
April 23, 1998
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Washington, D.C. 20549
Attn: Office of Applications and Reports Services
Re: Faroudja, Inc.
Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Faroudja,Inc., a Delaware corporation (the
"Company"), in connection with the registration of 2,450,000 shares of common
stock, $.001 par value (the "Shares") with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended, (the
"1933 Act"), pursuant to a registration statement on Form S-8 (the "Registration
Statement"). The Shares are registered on behalf of the Company and will be
issued pursuant to the Company's 1995 Stock Option Plan, 1997 Performance Stock
Option Plan, 1997 Non-Employee Directors Stock Option Plan and the 1997 Amended
Employee Stock Purchase Plan (the "Plans").
This opinion is being delivered in accordance with the requirements of Item
601(b)(5)(i) of Regulation S-K under the 1933 Act.
In our capacity as counsel to the Company, we have reviewed such documents
and made such inquiries as we have reasonably deemed necessary to enable us to
render the opinion expressed below. In all such review, we have made certain
customary assumptions such as the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the lack of any
undisclosed modifications, waivers, or amendments to any documents reviewed by
us and the conformity to authentic original documents of all documents submitted
to us as conformed or photostatic copies. For purposes of rendering this
opinion, we have investigated such questions of law as we have deemed necessary.
On the basis of the foregoing, and in reliance thereon and subject to the
assumptions, qualifications, exceptions and limitations expressed herein, we are
of the opinion that when the Shares are issued in accordance with the terms of
the Plans, the Shares will be duly authorized, legally issued, fully paid and
non-assessable.
This opinion is limited to the present laws of the State of California and
of the United States of America, and the corporate law of the State of Delaware.
This opinion is solely for your information in connection with the offer and
sale of the Shares by the Company, and is not, without the prior written consent
of this firm, to be quoted in full or in part or otherwise referred to in any
documents nor to be filed with any governmental agency or other persons, other
than with the Commission and various state securities administrators in
connection with the qualification of the Shares, to which reference and filings
we hereby consent. In giving this consent, we do not thereby admit that we are
in the category of person whose consent is required under Section 7 of the 1933
Act or the rules and regulations of the Commission.
Very truly yours,
/s/ BUCHALTER, NEMER, FIELDS & YOUNGER
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Faroudja, Inc., pertaining to the 1995 Stock Option Plan, the 1997
Performance Stock Option Plan, the 1997 Non-Employee Directors Stock Option Plan
and the 1997 Amended Employee Stock Option Plan, of our report dated January 29,
1998 with respect to the consolidated financial statements of Faroudja, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1997, and our report dated March 27, 1998 with respect to the
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
Ernst & Young LLP
Palo Alto, California
April 21, 1998
