As filed with the Securities and Exchange Commission
on September 10, 1997
Registration No. 333-26897
=============================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FSC SEMICONDUCTOR CORPORATION
(Exact Name of Issuer as specified in its charter)
Delaware 04-3363001
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
333 Western Avenue
Mail Stop 01-00
South Portland, Maine 04106
(Address of Principal Executive (Zip Code)
Offices)
STOCK OPTION PLAN
(Full title of the plan)
David J. Champoux
Pierce Atwood
One Monument Square
Portland, Maine 04101
(Name and address of agent for service)
(207) 791-1100
(Telephone number, including area code, of agent for service)
==============================================================
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum minimum Amount of
Securities to Amount to offering price aggregate registration
be registered be registered per share offering price fee
Class A 821,000 $.50<F1> $.50<F1> $124.40
Common shares
Stock,
par value
$.01 per share
[FN]
<F1> Estimated solely for the purpose of calculating the
registration fee, and based upon the exercise price of the
options granted to date (and the fact that book value of such
shares is negative at present), in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in
documents sent or given to participants in the Registrant's
Stock Option Plan pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which are filed with the
Securities and Exchange Commission (the "Commission"), are
incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed
pursuant to Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(2) All other reports filed pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the document referred to in (1)
above.
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 shares of Class A Common Stock offered hereby have
been sold or which deregisters all shares of Class A Common
Stock then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from
the respective dates of filing of such documents.
Item 4. Description of Securities
The Registrant's authorized capital stock consists of
30,000,000 shares of Class A Common Stock, $.01 par value
("Common Stock"), 30,000,000 shares of Class B Common Stock,
$.01 par value ("Class B Common Stock") and 70,000 shares of
12% Series A Cumulative Compounding Preferred Stock
("Preferred Stock"), $1,000 per share stated value.
Dividends may be paid to the holders of the Common Stock
and Class B Common Stock when and if declared by the Board of
Directors out of funds legally available therefor, and after
payment of cumulative dividends on outstanding Preferred
Stock, if any. Under the terms of its existing indebtedness,
the Registrant and its subsidiaries are subject to substantial
restrictions on their ability to pay dividends on Common Stock
and Class B Common Stock, and management does not anticipate
any such dividend payments in the foreseeable future. Also,
the Registrant may not pay any dividend upon (except for a
dividend payable in Junior Stock, as defined below), or redeem
or otherwise acquire shares of, capital stock junior to the
II-1<PAGE>
Preferred Stock (including the Common Stock and Class B Common
Stock) ("Junior Stock") unless all cumulative dividends on the
Preferred Stock have been paid in full. Upon liquidation,
dissolution or winding up of the Registrant, holders of
Preferred Stock will be entitled to receive out of the legally
available assets of the Registrant, before any amount shall be
paid to holders of Junior Stock, an amount equal to $1,000 per
share of Preferred Stock, plus all accrued and unpaid
dividends to the date of final distribution. If such
available assets are insufficient to pay the holders of the
outstanding shares of Preferred Stock in full, such assets, or
the proceeds thereof, will be distributed ratably among such
holders.
Under the Certificate of Incorporation of the Registrant,
a holder of Common Stock or Class B Common Stock may convert
any or all of his shares into an equal number of shares of the
other class of common stock; provided that in the case of a
conversion from Class B Common Stock, which is nonvoting, into
Common Stock, which is voting, the holder of shares to be
converted would be permitted under applicable law to hold the
total number of shares of Common Stock which would be held
after giving effect to the conversion.
The Common Stock and the Class B Common Stock are not
entitled to any preemptive or other subscription rights and do
not have any redemption or sinking fund provisions. Holders
of Common Stock are entitled to one vote per share held of
record on all matters submitted to a vote of stockholders.
Except as required by law, the holders of Class B Common Stock
will have no voting rights. Voting in the election of
directors is not cumulative. Holders of Preferred Stock have
limited voting rights.
Upon liquidation, the holders of Common Stock and Class B
Common Stock are entitled to share ratably in the entire net
assets of the Registrant remaining available for distribution
to stockholders after payment of all amounts payable on
liquidation in respect of outstanding shares of Preferred
Stock, if any. All outstanding shares of Common Stock and
Class B Common Stock are, and the shares offered hereby will
be, validly issued, fully paid and nonassessable.
The persons and entities who become stockholders of the
Registrant in connection with its formation are parties to a
Securities Purchase and Holders Agreement (the "Stockholders'
Agreement") containing certain agreements among such
stockholders with respect to the capital stock and corporate
governance of the Registrant. The following is a summary
description of the principal terms of the Stockholders'
Agreement, a copy of which is available upon request to the
Registrant.
Pursuant to the Stockholders' Agreement, the Board of
Directors of the Registrant will be composed at all times of
seven directors as follows: Kirk P. Pond (so long as he
continues to own shares of Common Stock, Class B Common Stock
or Preferred Stock); Joseph R. Martin (so long as he continues
to own shares of Common Stock, Class B Common Stock or
Preferred Stock); the President of the Registrant if either of
Messrs. Pond or Martin is no longer serving on the Board of
Directors; if National Semiconductor Corporation so chooses,
so long as National Semiconductor Corporation continues to own
II-2<PAGE>
shares of Common Stock or Preferred Stock, one individual
designated by National Semiconductor Corporation, provided
that such person shall initially be either Brian L. Halla or
Donald Macleod (until the earlier of March 11, 1999 or the
date upon which such person ceases to be an executive officer
of National Semiconductor Corporation) and thereafter shall be
an executive officer of National Semiconductor Corporation
reasonably acceptable to the remaining directors; two
individuals designated by Sterling Capital Holdings, LLC
("Sterling"); and the remaining directors such independent
directors as shall be designated by Sterling (to the extent
permitted by applicable law as determined by Sterling in its
sole discretion), subject to the right of the Chief Executive
Officer of the Registrant to veto the election of any such
independent director, provided, that in the event that
Sterling concludes that it is unable to designate, or elects
not to designate for any reason, one or more of such
independent directors or the election of any such independent
director is not approved by the holders of a majority of the
outstanding shares of Common Stock, such directorship(s) shall
not be filled by the remaining members of the Registrant's
Board of Directors but shall remain vacant until the election
of a director designated by Sterling to fill such vacancy in
accordance with the Stockholders' Agreement.
The Stockholders' Agreement contains certain provisions
which, with certain exceptions, restrict the ability of the
parties thereto to transfer any Common Stock, Class B Common
Stock or Preferred Stock except pursuant to the terms of the
Stockholders' Agreement. If holders of more than 50% of the
Common Stock and Class B Common Stock (voting together)
approve the sale of the Registrant (an "Approved Sale"), each
of such parties has agreed to consent to such sale and, if
such sale includes the sale of stock, each of such parties has
agreed to sell all of such stockholder's Common Stock, Class B
Common Stock and Preferred Stock on the terms and conditions
approved by holders of a majority of the Common Stock and
Class B Common Stock then outstanding (voting together). In
the event the Registrant proposes to issue and sell (other
than in a public offering pursuant to a registration
statement) any shares of Common Stock or Class B Common Stock
or any securities containing options or rights to acquire any
shares of Common Stock or Class B Common Stock or any
securities convertible into Common Stock or Class B Common
Stock to Sterling or its corporate affiliates, the Registrant
must first offer to the parties thereto a pro rata portion of
such shares. Such preemptive rights will not be applicable to
the issuance of shares of Common Stock or Class B Common Stock
upon the conversion of shares of one class of common stock
into shares of the other class.
THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF
OPTIONS GRANTED UNDER THE PLAN WILL GENERALLY CONSTITUTE NEWLY
ISSUED SECURITIES FOR WHICH THERE IS CURRENTLY NO ACTIVE
TRADING MARKET. IF SUCH SHARES ARE TRADED AFTER THEIR INITIAL
ISSUANCE, THEY MAY TRADE AT A DISCOUNT FROM THE EXERCISE PRICE
UNDER SUCH OPTIONS, DEPENDING UPON THE MARKET FOR SIMILAR
SECURITIES AND OTHER FACTORS, INCLUDING GENERAL ECONOMIC AND
INDUSTRY CONDITIONS AND THE FINANCIAL CONDITION OF,
PERFORMANCE OF AND PROSPECTS FOR THE REGISTRANT AND ITS
SUBSIDIARIES. THE REGISTRANT DOES NOT PRESENTLY INTEND TO
LIST THE COMMON STOCK FOR TRADING ON ANY SECURITIES EXCHANGE
OR TO SEEK APPROVAL FOR QUOTATION OF THE COMMON STOCK THROUGH
II-3<PAGE>
ANY AUTOMATED QUOTATION SYSTEM. THERE CAN BE NO ASSURANCE
THAT AN ACTIVE TRADING MARKET WILL DEVELOP FOR THE COMMON
STOCK. IF A TRADING MARKET DOES NOT DEVELOP OR IS NOT
MAINTAINED, HOLDERS OF COMMON STOCK MAY EXPERIENCE DIFFICULTY
IN RESELLING SUCH SHARES OR MAY BE UNABLE TO SELL THEM AT ALL.
Affiliates of the Registrant may not reoffer or resell
Common Stock acquired pursuant to the exercise of options
under the Plan except: (1) pursuant to an effective
registration statement covering such resale or reoffer, (2) in
a transaction which meets all the requirements of Rule 144 of
the Commission except paragraph (d) thereof, or (3) pursuant
to any other applicable exemption from registration. An
affiliate is a person who directly or indirectly controls, is
controlled by, or under common control with the Registrant.
Optionees are advised to consult with counsel before effecting
reoffers or resales of Common Stock acquired pursuant to the
exercise of options under the Plan.
Management is not aware of any arrangement which could at
a subsequent date result in a change in control of the
Registrant.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification
Section 145 of the Delaware General Corporation Law
provides in relevant part that a corporation may indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
corporation) by reason of the fact that such person is or was
a director, officer, employee, or agent of the corporation, or
is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by
such person in connection with such action, suit or proceeding
if 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 corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe such person's conduct was unlawful.
In addition, Section 145 provides that a corporation may
indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person
is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
II-4<PAGE>
another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit if 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 corporation and except that no
indemnification shall be made in respect of any claim, issue,
or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent
that the Delaware Court of Chancery or the court in which such
action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem
proper.
Section 145 further provides that nothing in the above-
described provisions shall be deemed exclusive of any other
rights to indemnification or advancement of expenses to which
any person may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
The Bylaws of the Registrant provide for the
indemnification of any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of
the fact that such person is or was a director or officer of
the Registrant or a constituent corporation absorbed in a
consolidation or merger, or is or was serving at the request
of the Registrant or a constituent corporation absorbed in a
consolidation or merger, as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise, or is or was a director or officer of the
Registrant serving at its request as an administrator, trustee
or other fiduciary of one or more of the employee benefit
plans of the Registrant or other enterprise, against expenses
(including attorneys' fees), liability and loss actually and
reasonably incurred or suffered by such person in connection
with such proceeding, whether or not the indemnified liability
arises or arose from any threatened, pending or completed
proceeding by or in the right of the Registrant, except to the
extent that such indemnification is prohibited by applicable
law. The Bylaws of the Registrant also provide that such
indemnification shall not be deemed exclusive of any other
rights to which those indemnified may be entitled as a matter
of law or under any by-law, agreement, vote of stockholders or
otherwise.
Section 102(b)(7) of the Delaware General Corporation Law
provides that a corporation may in its certificate of
incorporation eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director except for
liability: for any breach of the director's duty of loyalty
to the corporation or its stockholders; for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law; under Section 174 of the Delaware
General Corporation Law (pertaining to certain prohibited acts
including unlawful payment of dividends or unlawful purchase
or redemption of the corporation's capital stock); or for any
transaction from which the director derived an improper
II-5<PAGE>
personal benefit. The Certificate of Incorporation of the
Registrant contains a provision so limiting the personal
liability of directors of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
1. The 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:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(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; and
(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.
Provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the Registration Statement is on Form S-3 or
Form S-8, and 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 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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2. The 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 any 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.
3. 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.
II-7<PAGE>
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 South Portland, State of Maine, on
the 9th day of September, 1997.
FSC SEMICONDUCTOR CORPORATION
By: /s/ Kirk P. Pond
Kirk P. Pond
President and Chief
Executive Officer
II-8<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of FSC
SEMICONDUCTOR CORPORATION, hereby severally constitute Kirk P.
Pond and Daniel E. Boxer, and each of them singly, our true and
lawful attorneys with full power to them, and each of them
singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said
Registration Statement, and generally to do all such things in
our names and behalf in our capacities as officers and directors
to enable FSC SEMICONDUCTOR CORPORATION to comply with all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by
said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
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 date indicated.
Signature Title Date
/s/ Kirk P. Pond President, Chief Executive September 4, 1997
Kirk P. Pond Officer and Director
/s/ Joseph R. Martin Executive Vice President, September 4, 1997
Joseph R. Martin Chief Financial Officer
and Director
Director
Richard M. Cashin, Jr.
/s/ Brian L. Halla Director September 4, 1997
Brian L. Halla
/s/ William N. Stout Director September 2, 1997
William N. Stout
/s/ Paul C. Schorr, IV Director August 29, 1997
Paul C. Schorr, IV
II-9<PAGE>
Exhibit Index
Exhibit
Number Description
4.1(1) Certificate of Incorporation of the Registrant
4.2(1) Bylaws of the Registrant
5.1 Opinion of Pierce Atwood
23.1 Consent of Pierce Atwood (included in Exhibit 5.1)
23.2 Consent of KPMG Peat Marwick L.L.P.
24.1 Power of Attorney (see page II - 9 of this
Registration Statement)
(1) Incorporated herein by reference from the Registrant's
Registration Statement on Form S-4 (File No. 333-26897).
II-10<PAGE>
Exhibits 5.1 and 23.1
September 9, 1997
FSC Semiconductor Corporation
333 Western Avenue
South Portland, Maine 04106
Re: Stock Option Plan
Dear Sirs:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to 821,000
shares of Class A Common Stock, par value $.01 per share (the
"Shares"), of FSC Semiconductor Corporation, a Delaware
corporation (the "Company"), issuable upon exercise of options
granted or to be granted under the Company's Stock Option Plan
(the "Plan").
We have examined and relied upon the Company's Certificate
of Incorporation and Bylaws and originals, or copies certified to
our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration
Statement and such other documents relating to the Company as we
have deemed relevant for the purposes of this opinion.
In our examination of the foregoing documents, we have
assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals, and the conformity to
original documents of all documents submitted to us as certified
or photostatic copies.
Based on and subject to the foregoing, we are of the opinion
that the Company has duly authorized for issuance the Shares
covered by the Registration Statement issued or to be issued
under the Plan, as described in the Registration Settlement, and
the Shares, when issued in accordance with the terms of the Plan,
will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the
Registration Statement.
Very truly yours,
/s/ David J. Champoux
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
FSC Semiconductor Corporation:
We consent to the incorporation by reference in the
Registration Statement on Form S-8 of FSC Semiconductor
Corporation of our report dated June 5, 1997 relating to the
consolidated balance sheet of FSC Semiconductor Corporation
as of May 25, 1997, the combined balance sheet of the FSC
Semiconductor Business of National Semiconductor Corporation
as of May 26, 1996 and the related consolidated and combined
statements of operations and equity for each of the years in
the three year period ended May 25, 1997, which report
appears in the May 25, 1997 Annual Report on Form 10-K of
FSC Semiconductor Corporation.
KPMG Peat Marwick LLP
Boston, Massachusetts
September 10, 1997
