Registration
Number 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MAKER COMMUNICATIONS, INC.
(Exact name of issuer as specified in its charter)
Delaware 04-3276285
(State of Incorporation) (IRS Employer Identification Number)
73 Mount Wayte Avenue, Framingham, MA 01702
(Address of Principal Executive Offices)
(508) 628-0622
(Registrant's telephone number, including area code)
1996 Stock Option Plan
1999 Employee Stock Purchase Plan
1999 Non-Employee Director Stock Option Plan
1999 Stock Incentive Plan
(Full title of the Plans)
Richard M. Stein, Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------- -------------------------------------- ------------------- ------------------- ------------------
Title of Amount of Securities to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered(1) Offering Price Aggregate Registration Fee
Registered Per Share Offering Price
- ------------------- -------------------------------------- ------------------- ------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock 1996 Stock Option Plan
2,447,140 $2.48 $ 6,068,907.20 $ 1,690 (3)
- ------------------- -------------------------------------- ------------------- ------------------- ------------------
Common Stock 1999 Stock Incentive Plan
68,250 $26.33 $ 1,797,022.50 $ 500 (3)
2,531,750 $26.25 $66,458,437.50 $18,480 (2)
- ------------------- -------------------------------------- ------------------- ------------------- ------------------
Common Stock 1999 Non-Employee Director Stock
Option Plan
60,000 $ 5.77 $ 346,200 $ 100 (3)
245,000 $26.25 $ 6,481,250 $1,790(2)
- ------------------- -------------------------------------- ------------------- ------------------- ------------------
Common Stock 1999 Employee Stock Purchase Plan
400,000 $26.25 $10,500,000 $2,920(2)
- ------------------- -------------------------------------- ------------------- ------------------- ------------------
</TABLE>
<PAGE>
(1) Also registered hereunder are such additional number of shares of
Common Stock, presently indeterminable, as may be necessary to satisfy
the antidilution provisions of the Plans to which this Registration
Statement relates.
(2) Calculated solely for the purpose of this offering under Rule 457(h) of
the Securities Act of 1933, as amended (the "Securities Act") on the
basis of the high and low selling prices per share of Maker's Common
Stock on September 14, 1999, as reported on the Nasdaq National Market.
(3) Calculated solely for the purpose of this offering under Rule 457(h) of
the Securities Act, on the basis of the weighted average exercise price
of the outstanding options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (prior to 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 this Registration Statement and to be a part thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, which contains either
directly or by incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been filed.
(b) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or the prospectus referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company under the Securities Exchange
Act of 1934, including any amendment or report filed for the purpose of updating
such description.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock offered
hereby will be passed upon for the Company by Hutchins, Wheeler & Dittmar, A
Professional Corporation, Boston, Massachusetts. Richard M. Stein and Robert P.
Sherman, each a stockholder of Hutchins, Wheeler & Dittmar, own an aggregate of
16,632 shares of common stock of the Company. Richard M. Stein is also the
Assistant Secretary of the Company. David P. Kreisler, a member of Hutchins,
Wheeler & Dittmar, owns 500 shares of the common stock of the Company.
Item 6. Indemnification of Directors and Officers
The Delaware General Corporate Law and the Company's Certificate of
Incorporation and By-Laws allow for indemnification of the Company's directors
and officers for liabilities and expenses that they may incur in such
capacities. In general, directors and officers are indemnified with respect to
actions taken in good faith in a manner reasonably believed to be in, or not
opposed to, the best interests of the Company, and with respect to any criminal
action or proceeding, actions that the indemnitee has no reasonable cause to
believe were unlawful.
Article 10 of the Amended and Restated By-Laws of the Company provides as
follows:
Section 10.1 Third Party Actions The Corporation shall 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 he 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 attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
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 his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
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
reasonable cause to believe that his conduct was unlawful.
Section 10.2 Derivative Actions The Corporation shall 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 he 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) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he 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 for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the 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 Court of
Chancery or such other court shall deem proper.
Section 10.3 Expenses. To the extent that a Director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 10.1 and 10.2,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
Section 10.4 Authorization. Any indemnification under Sections 10.1 and
10.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 10.1 and 10.2.
Such determination shall be made (a) by the Board of Directors by a majority
vote of a quorum consisting of Directors who were not parties to such action,
suit or proceeding, or (b) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested Directors so directs, by independent legal
counsel in a written opinion, or (c) by the stockholders.
Section 10.5 Advance Payment of Expenses. Expenses incurred by an
officer or Director in defending a civil or criminal action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of such officer or
Director to repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the Corporation as authorized in this Article
10. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 10.6 Non-Exclusiveness. The indemnification provided by this
Article 10 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 10.7 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who 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 any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article 10.
Section 10.8 Constituent Corporations. The Corporation shall have power
to indemnify any person who is or was a director, officer, employee or agent of
a constituent corporation absorbed in a consolidation or merger with this
Corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, in the same manner as hereinabove
provided for any person who 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.
Section 10.9 Additional Indemnification. In addition to the foregoing
provisions of this Article 10, the Corporation shall have the power, to the full
extent provided by law, to indemnify any person for any act or omission of such
person against all loss, cost, damage and expense (including attorney's fees) if
such person is determined (in the manner prescribed in Section 10.4 hereof) to
have acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the Corporation.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Number Description
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<S> <C>
4.1 1999 Non-Employee Director Stock Option Plan (Plan filed as Exhibit 10.12 to Registration
Statement on Form S-1 [Registration No. 333-74293]).
4.2 1999 Stock Incentive Plan (Plan filed as Exhibit 10.10 to Registration Statement on Form S-1
[Registration No. 333-74293])
4.3 1999 Employee Stock Purchase Plan (Plan filed as Exhibit 10.11 to Registration Statement on
Form S-1 [Registration No. 333-74293]
4.4 1996 Stock Option Plan (Plan filed as Exhibit 10.8 to Registration Statement on Form S-1
[Registration No. 333-74293]
5 Opinion of Hutchins, Wheeler & Dittmar, A Professional Corporation, as to legality of shares
being registered and consent of Hutchins, Wheeler & Dittmar, A Professional Corporation (filed
herewith).
23.2 Consent of Independent Public Accountants - included in Registration Statement under heading
"Consent of Independent Public Accountants."
</TABLE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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:
(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 this 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 this 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 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 this
Registration Statement or any material change to such information
in this Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) 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.
(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 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 this
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) The undersigned Registrant hereby undertakes, that, 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 Securities Act of
1933 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 of 1933 and will be governed by the final adjudication of such issue.
<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 Framingham, Massachusetts on September 16, 1999.
MAKER COMMUNICATIONS, INC.
By:/s/William N. Giudice
Name: William N. Giudice
Title: President and Chief Executive Officer
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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<CAPTION>
Signature Title Date
<S> <C> <C>
Director, President, Chairman and Chief
/s/William N. Giudice Executive Officer (principal executive officer)
William N. Giudice September 16, 1999
Chief Financial Officer and Treasurer (principal
/s/Michael Rubino financial and accounting officer) September 16, 1999
Michael Rubino
/s/Roger Evans Director September 16, 1999
Roger Evans
/s/Rob Soni Director September 16, 1999
Rob Soni
/s/Louis Tomasetta Director September 16, 1999
Louis Tomasetta
/s/Paul R. Low Director September 16, 1999
Paul R. Low
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
MAKER COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
September ____, 1999
Maker Communications, Inc.
73 Mount Wayte Avenue
Framingham, MA 01702
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Maker Communications, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") on or
about September ___, 1999 in connection with the registration under the
Securities Act of 1933, as amended, of a total of (i) 2,447,140 shares of the
Company's Common Stock reserved for issuance under the Company's 1996 Stock
Option Plan; (ii) 2,600,000 shares of the Company's Common Stock reserved for
issuance under the Company's 1999 Stock Incentive Plan Agreement; (iii) 305,000
shares of the Company's Common Stock reserved for issuance under the Company's
1999 Non-Employee Director Stock Option Plan (collectively, the "Option Plans");
and (iii) 400,000 shares of the Company's Common Stock reserved for issuance
under the Company's 1999 Employee Stock Purchase Plan (the "Purchase Plan"). As
the Company's legal counsel in connection with this transaction, we have
examined the proceedings taken and are familiar with the proceedings proposed to
be taken by the Company in connection with the sale and issuance of the
foregoing shares under the Option Plans and the Purchase Plan, respectively
(collectively, the "Shares").
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that the Shares, when
issued and sold in the manner described in the Registration Statement will be
legally and validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references to us under the caption "Interests
of Named Experts and Counsel" in the Registration Statement, including the
Prospectus constituting a part thereof, and in any amendment thereto.
Very truly yours,
/s/Hutchins, Wheeler & Dittmar
HUTCHINS, WHEELER & DITTMAR,
A Professional Corporation
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
report dated February 10, 1999 (and to all references to our firm) included in
or made part of this Registration Statement.
/s/Arthur Andersen LLP
Boston, Massachusetts
September 16, 1999
