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As filed with the Securities and Exchange Commission on August 15, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
LEXAR MEDIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 33-0723123
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
Lexar Media, Inc.
47421 Bayside Parkway
Fremont, California 94538
(Address of Principal Executive Offices, including Zip Code)
1996 Stock Option/Stock Issuance Plan
2000 Equity Incentive Plan
2000 Employee Stock Purchase Plan
(Full Titles of the Plans)
Ronald H. Bissinger
Chief Financial Officer
LEXAR MEDIA, INC.
47421 Bayside Parkway
Fremont, California 94538
(510) 413-1200
(Name, Address and Telephone Number of Agent for Service)
Copies to:
Scott J. Leichtner, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================== ================= ====================== ====================== ===============
Amount Proposed Maximum Proposed Maximum Amount of
To Be Offering Price Aggregate Registration
Title of Securities To Be Registered Registered Per Share Offering Price Fee
---------------------------------------- ----------------- ---------------------- ---------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 9,641,463 (1) $8.00 (2) $77,131,704 $20,363
Common Stock, $0.001 par value 3,186,422 (3) $3.73 (4) $11,885,355 $ 3,138
---------------------------------------- ----------------- ---------------------- ---------------------- ---------------
TOTAL 12,827,885 89,017,059 $23,501 (5)
======================================== ================= ====================== ====================== ===============
</TABLE>
(1) Represents the sum of 8,641,463 shares available for grant under the
Registrant's 2000 Equity Incentive Plan and 1,000,000 shares available for
grant under Registrant's 2000 Employee Stock Purchase Plan.
(2) Estimated as of August 15, 2000 pursuant to Rule 457(c) solely pursuant for
the purpose of calculating the registration fee.
(3) Represents shares subject to options outstanding as of August 15, 2000
under the Registrant's 1996 Stock Option/Stock Issuance Plan.
(4) Weighted average per share exercise price for the outstanding options
pursuant to Rule 457(h)(1).
(5) Includes a fee of $9,240, which was previously paid by the Registrant
pursuant to Rule 457(c) under the Securities Act, in connection with the
filing of a Registration Statement on Form S-1 (File No. 333-30556) on
March 28, 2000. Pursuant to Rule 457(b) under the Securities Act, such fee
is credited against the registration fee, and accordingly, an additional
$14,261 is being paid in connection with the filing of this Registration
Statement.
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ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of Commission and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, which contains audited
financial statements of the Registrant for the year ended
December 31, 1999.
(b) The description of the Registrant's common stock contained in
the Registrant's Registration Statement on Form 8-A filed
under Section 12(g) of the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities
registered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES - SECURITIES TO BE PURCHASED.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Fenwick & West LLP, Palo Alto, California, will pass upon the validity
of the shares of common stock offered hereby. An investment partnership
comprised of partners of Fenwick & West LLP holds 43,750 shares of our common
stock and Fenwick & West LLP holds a warrant to purchase 30,000 shares of our
common stock at an exercise price of $1.00 per share.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law authorizes a court
to award, or the board of directors of a corporation to grant, indemnity to
directors and officers in terms sufficiently broad to permit indemnification
under certain circumstances for liabilities, including reimbursement for
expenses incurred, arising under the Securities Act of 1933.
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As permitted by the Delaware General Corporation Law, the Registrant's
Certificate of Incorporation provides that its directors shall not be liable to
the Registrant or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that the exculpation from liabilities
is not permitted under the Delaware General Corporation Law as in effect at the
time such liability is determined. As permitted by the Delaware General
Corporation Law, the Bylaws of the Registrant provide that the Registrant shall
indemnify its directors to the full extent permitted by the laws of the State of
Delaware.
The Registrant has also entered into indemnification agreements with
its directors and officers that obligate the Registrant to indemnify such
directors and officers against losses incurred in connection with certain claims
in their capacities as agents of the Registrant. The underwriting agreement
relating to the Registrant's initial public offering provides that the
underwriters will indemnify the officers, directors and controlling persons of
the Registrant against certain liabilities.
The Registrant maintains directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Title
------- -------------------------------------------------------------
<C> <S>
4.1 Specimen Common Stock Certificate (incorporated herein by
reference to Exhibit 4.1 to Registrant's registration
statement on Form S-1, Registration No. 333-30556 (the "Form
S-1")
4.2 Investors Rights Agreement dated September 28, 1999, as
amended (incorporated herein by reference to Exhibit 4.2 of
the Form S-1)
4.3 Amendment No. 2 to Investors Rights Agreement dated March 21,
2000 (incorporated herein by reference to Exhibit 4.3 of the
Form S-1)
4.4 Amendment No. 3 to Investors Rights Agreement dated May 19,
2000 (incorporated herein by reference to Exhibit 4.4 of the
Form S-1)
4.5 Amendment No. 4 to Investors Rights Agreement dated June 22,
2000 (incorporated herein by reference to Exhibit 4.5 of the
Form S-1)
5.1 Opinion of Fenwick & West LLP
23.1 Consent of Fenwick & West LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (see page 5)
</TABLE>
ITEM 9. UNDERTAKINGS.
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;
3
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(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;
provided, however, that paragraphs (1)(a)(i) and (1)(b)(ii) do not apply if the
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information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act of 1934 that are incorporated by reference in the 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.
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 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.
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 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 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 Fremont, State of California, on this 15th day of
August, 2000.
LEXAR MEDIA, INC.
By: /s/ Ronald H. Bissinger
-------------------------
Ronald H. Bissinger
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John H. Reimer and Ronald H.
Bissinger, and each of them acting individually, as his attorney-in-fact, each
with full power of substitution, for him 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 on August 15, 2000 by the following
persons in the capacities indicated:
Signature Title
/s/ Petro Estakhri Chairman of the Board, Chief Technology Officer
-------------------------- and Executive Vice President, Engineering
Petro Estakhri
/s/ John H. Reimer President, Chief Executive Officer and Director
-------------------------- (Principal Executive Officer)
John H. Reimer
/s/ Eric B. Stang Chief Operating Officer and Director
--------------------------
Eric B. Stang
/s/ Ronald H. Bissinger Chief Financial Officer (Principal Financial
-------------------------- Officer and Principal Accounting Officer)
Ronald H. Bissinger
/s/ William T. Dodds Director
--------------------------
William T. Dodds
/s/ Brian D. Jacobs Director
--------------------------
Brian D. Jacobs
Director
--------------------------
John A. Rollwagen
/s/ William J. Stewart Director
--------------------------
William J. Stewart
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Title
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5.1 Opinion of Fenwick & West LLP
23.1 Consent of Fenwick & West LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (see page 5)
6
