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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 2000
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DCH TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C> <C>
COLORADO 2810 84-1349374
------------------------------- ------------------------- ----------
(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Classification Identification Number)
Code)
</TABLE>
27811 AVENUE HOPKINS, #6
VALENCIA, CALIFORNIA 91355
(661) 775-8120
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
1999 Stock Option Plan
MR. DAVID A. WALKER
PRESIDENT
DCH TECHNOLOGY, INC.
27811 AVENUE HOPKINS, #6
VALENCIA, CALIFORNIA 91355
(661) 775-8120
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
-----------------------
COPY TO:
CATHRYN S. GAWNE, ESQ.
SILICON VALLEY LAW GROUP
152 NORTH THIRD STREET, SUITE 900
SAN JOSE, CALIFORNIA 95112
(408) 286-6100
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE FEE
--------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 5,000,000 shares $5.094 $25,470,000 $6,724.08
Total 5,000,000 shares $5.094 $25,470,000 $6,724.08
--------------------------------------------------------------------------------
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 (h).
--------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1) promulgated under the Securities Act
of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this registration
statement:
(a) The Registrant's Annual Report on Form 10-KSB for the year ended
December 31, 1999, filed with the Securities and Exchange Commission
on March 27, 2000.
(b) The description of Common Stock contained in the section, entitled
"Description of Capital Stock", of that certain prospectus dated March
29, 2000, filed with the Securities Exchange Commission pursuant to
Rule 424(b) of the Securities Act of 1933, as amended.
In addition, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to
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the filing of a post-effective amendment which indicates that all securities
offered herein 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 date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of our Bylaws require us to indemnify, to the fullest extent
allowed by the Colorado Business Corporation Act (the "CBCA"), any person who
serves or who has served at any time as a director or an officer of DCH, and any
director or officer who, at the request of us, serves or at any time has served
as a directory or officer, partner, trustee or employee, or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust,
other enterprise or employee benefit plan, against any and all liabilities and
reasonable expenses incurred in connection with any claim, action, suit, or
proceeding to which such director or officer is made a party, or which may be
asserted against him, because he is or was a director or an officer. This
Article also provides that directors of DCH shall not be liable to us or any of
our shareholders for monetary damages caused by a breach of fiduciary duty as a
director.
Section 7-109-102 and 103 of the CBCA authorize the indemnification of
directors and officers against liability incurred by reason of being a director
or officer and against expenses (including attorney's fees) judgements, fines
and amount paid in settlement and reasonably incurred in connection with any
action seeking to establish such liability, in the case of third-party claims,
if the officer or director 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
in the case of actions by or in the right of the corporation, if the officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the corporation and if such officer or
director shall not have been adjudged liable to the corporation, unless a court
otherwise determines. Indemnification is also authorized with respect to any
criminal action or proceeding where the officer or director had no reasonable
cause to believe his conduct was unlawful.
The above discussion of our Bylaws and the CBCA is only a summary and is
qualified in our entirety by the full text of each of the foregoing.
Directors and officers of DCH and its subsidiaries are covered by an
insurance policy that insures them against certain losses, liabilities and
expenses. The annual aggregate liability limit under the policy is $2,000,000.
The policy contains numerous exclusions, including exclusions for personal
profit, libel and slander and certain environmental liabilities.
II-2
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this registration statement:
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 1999 Stock Option Plan of the Registrant.
4.2 Form of Stock Option Agreement under the 1999 Stock Option
Plan of the Registrant.
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit
5.1)
23.2 Consent of Lucas, Horsfall, Murphy & Pindroh
24.1 Power of Attorney (see page II-5).
II-3
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ITEM 9. UNDERTAKINGS
(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 of 1933, each 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 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 6
above, 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.
II-4
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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 Valencia, State of California, on June 14, 2000.
DCH TECHNOLOGY, INC.
By: /s/ DAVID A. WALKER
----------------------------
David A. Walker
President
POWER OF ATTORNEY
Each director and/or officer of the Registrant whose signature appears
below hereby appoints David A. Walker, as his attorney-in-fact, to sign in his
name and behalf, in any and all capacities stated below, and to file with the
Commission any and all amendments, including post-effective amendments, to this
registration statement, and the Registrant hereby also appoints each such person
as its attorney-in-fact with like authority to sign and file any such amendments
in its name and behalf.
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.
SIGNATURE TITLE DATE
--------- ------------- -------------
/s/ David A. Walker President, June 14, 2000
------------------- Chief Executive Officer,
David A. Walker Chief Financial Officer
(principal accounting officer)
and a Director
/s/ David P. Haberman Vice President and Director June 14, 2000
---------------------
David P. Haberman
Director June __, 2000
------------------------
Randall S. Firestone
Director June __, 2000
--------------------
Robert S. Walker
II-5
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Director June __, 2000
_____________________
Raymond N. Winkel
/s/ Dr. William L. Firestone Director June 14, 2000
----------------------------
Dr. William L. Firestone
Director June __, 2000
_______________________
Dr. John Barclay
/s/ Dr. Johan A. Friedericy Director June 14, 2000
---------------------------
Dr. Johan A. Friedericy
/s/ Daniel Teran Director June 14, 2000
---------------------------
Daniel Teran
II-6
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 1999 Stock Option Plan of the Registrant.
4.2 Form of Stock Option Agreement under the 1999 Stock Option
Plan of the Registrant.
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit
5.1)
23.2 Consent of Lucas, Horsfall, Murphy & Pindroh
24.1 Power of Attorney (see page II-5).
