<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 1, 2000
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
DCH TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
COLORADO 2810 84-349374
---------
(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Classification Identification
Code) Number)
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)
Option Agreement - Schlichtig
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
1
<PAGE>
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]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
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 15,000 shares $0.90 $13,500 $3.56
Total 15,000 shares $0.90 $13,500 $3.56
- ------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(c).
--------------------
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 our 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 DCH Technology, Inc. ("DCH") with the
Securities and Exchange Commission are hereby incorporated by reference in this
registration statement:
(a) Our Registration Statement on Form 10-SB, filed with the Securities
and Exchange Commission (File No. 000-26957) pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
containing audited financial statements for the year ended December
31, 1998.
2
<PAGE>
(b) All other reports filed by us with the Securities and Exchange
Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act
since the effective date of the above-referenced Form 10-SB (August
12, 1999).
In addition, all documents subsequently filed by us pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to 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 director, officer, partner, trustee, 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.
Sections 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) judgments, fines and
amounts 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.
3
<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The shares of Common Stock being registered pursuant to this
Registration Statement on Form S-8 were issued by us to a consultant, Roger
Schlichtig, pursuant to the terms and conditions of an option agreement between
Mr. Schlichtig and us. The consulting services involved the design of
electronic assemblies for our sensor and fuel cell products. This issuance was
made in a transaction not involving a public offering in reliance upon the
exemption from registration provided by Section 4(2) of the Securities Act of
1933, as amended, and was made without general solicitation or advertising. The
consultant is a sophisticated investor with access to all relevant information
necessary to evaluate the investment, and who represented to us that the shares
of Common Stock were being acquired for investment.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this registration statement:
Exhibit Number Description of Exhibit
- -------------- ----------------------
5.1 Opinion of Silicon Valley Law Group.
10.1 Option Agreement, dated December 31, 1999, between DCH and Roger
Schlichtig.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
23.2 Consent of Lucas, Horsfall, Murphy & Pindroh
4
<PAGE>
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.
5
<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 Valencia, State of California, on February 1, 2000.
DCH TECHNOLOGY, INC.
By: /s/ David A. Walker
_________________________
David A. Walker
President
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 February 1, 2000
- ---------------------- and Director
David A. Walker (principal executive and
accounting officer)
/s/ David P. Haberman Vice President, Planning February 1, 2000
- ---------------------- and Technology and Director
David P. Haberman
6
<PAGE>
/s/ Randall S. Firestone Director February 1, 2000
- -----------------------------
Randall S. Firestone
/s/ Dr. William L. Firestone Director February 1, 2000
- -----------------------------
Dr. William L. Firestone
/s/ Daniel Teran Director February 1, 2000
- -----------------------------
Daniel Teran
/s/ Robert S. Walker Director February 1, 2000
- -----------------------------
Robert S. Walker
/s/ Raymond N. Winkel Director February 1, 2000
- -----------------------------
Raymond N. Winkel
7
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibit
- -------------- ----------------------
5.1 Opinion of Silicon Valley Law Group
10.1 Option Agreement, dated December 31, 1999, between DCH and Roger
Schlichtig.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
23.2 Consent of Lucas, Horsfall, Murphy & Pindroh
8
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
February 1, 2000
DCH Technology, Inc.
27811 Avenue Hopkins, #6
Valencia, California 91355
Re: DCH Technology, Inc.
Registration Statement on Form S-8
----------------------------------
Gentlepersons:
We are counsel to DCH Technology, Inc., a Colorado corporation (the
"Company"). We have assisted the Company in its preparation of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), registering an aggregate of 15,000
shares of common stock, $.01 par value, of the Company (the "Common Stock")
issued to a consultant pursuant to an Option Agreement dated December 31, 1999
(the "Agreement").
In rendering this opinion, we have considered such questions of law and
examined such statutes and regulations, corporate records, certificates and
other documents (including but not limited to the Agreement) and have made such
other examinations, searches and investigations as we have considered necessary.
In such examinations 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 as
photocopies or telecopies. We have not made an independent examination of the
laws of any jurisdiction other than California and the federal laws of the
United States, and we do not express or imply any opinions in respect to the
laws of any other jurisdiction. The opinions expressed herein are based on
legislation and regulations in effect on the date hereof.
Based on and subject to the foregoing, we are of the opinion that the
Common Stock issued pursuant to the Agreement is duly and validly issued, fully
paid and nonassessable.
<PAGE>
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. This consent is not to be construed as an admission
that we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Securities Act.
Very truly yours,
/s/ SILICON VALLEY LAW GROUP
SILICON VALLEY LAW GROUP
<PAGE>
EXHIBIT 10.1
DCH TECHNOLOGY, INC.
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (this "Agreement") is made effective as of
12/31/1999 (the "Option Grant Date"), by and between DCH TECHNOLOGY, INC., a
Colorado corporation (the "Company") and Roger Schlichtig, (the "Optionee").
RECITALS
WHEREAS, the Board of Directors of the Company, by resolutions duly
approved as of 12/31/1999, and for the reasons set forth in said resolutions,
has granted to Optionee a non-statutory option or options (the "Option(s)") to
purchase shares of the Common Stock of the Company on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants set forth herein and other good and valuable consideration, the
parties hereto agree as follows:
AGREEMENT
1. The Option(s). The Optionee may, at his or her option, purchase all
-------------
or any part of an aggregate of 15,000 shares of Common Stock (the "Optioned
Shares"), at the price of $0.90 per share (the "Option Price"), on the terms and
conditions set forth herein.
2. Exercise Date and Exercise.
--------------------------
(a) The Option(s) shall be exercisable as to the Optioned Shares on
and after January 7th, 2000 and on or before December 31, 2004. Optionee
acknowledges that he or she understands he has no right whatsoever to
exercise the Option(s) granted hereunder on or after December 31, 2004
with respect to any Optioned Shares. Optionee further understands that the
Option(s) granted hereunder shall expire and become unexercisable as
provided in Section 6 of this document.
(b) This Option shall be deemed exercised as to the shares to be
purchased when written notice of such exercise has been given to the
Company at its principal business office by the Optionee with respect to
the Common Stock to be purchased. Such notice shall be accompanied by (i)
full payment in cash or cash equivalents or (ii) with shares of Common
Stock pursuant to Section 3 hereof, or (iii) by any combination of (i),
(ii) and (iii) as may be determined by the Board with respect to the
shares to be purchased. An Option may be exercised in Accordance with this
Section 2 as to all or any portion of the shares covered by an accrued
installment of the Option from time to time during the applicable, Option
period, but shall not be exercisable with respect to fractions of a share.
(c) As soon as practicable after any proper exercise Options in
accordance with the provisions of this Agreement, the Company shall,
without charging transfer or issue tax to the Optionee, deliver to the
Optionee at the Company's principal executive offices, or such other place
as shall be mutually acceptable, a certificate or certificates
representing the shares of Common Stock as to which the Options have been
exercised. The time of issuance and delivery of the Common Stock may be
postponed by the Company for such period as may be required for it with
reasonable diligence to comply with any applicable listing requirements of
any national or regional securities exchange or regulation applicable to
the issuance and delivery of such shares.
Page 1 of 4
<PAGE>
3. Payment of Exercise Price with Common Stock. Upon exercise of the
-------------------------------------------
Options, the Optionee may elect to pay for all or some of the shares of Common
Stock with shares of Common Stock of the Company previously acquired and owned
at the time of exercise by the Optionee, or to be acquired pursuant to exercise
of these Options, subject to all restrictions and limitations of applicable
laws, rules and regulations, and provided that the Optionee will make
representations and warranties satisfactory to the Company regarding his or her
title to the shares used to effect the purchase. The equivalent dollar value of
the shares used to effect the purchase shall be the fair market value of shares
on the date of the purchase as determined by the Board of Directors in its sole
discretion, exercised in good faith.
4. Certain Dispositions. Notwithstanding any provision in this Agreement
--------------------
to the contrary, in the event the Company or its stockholders enter into an
agreement to dispose of all or substantially all of the assets or capital stock
of the Company by means of a sale, merger, consolidation, reorganization,
liquidation or otherwise, the Optionee shall have the right to receive upon
surrender of his or her Options new options covering shares of the surviving
corporation in the same proportion, at an equivalent option price and subject to
the same terms and conditions as the old Options. For purposes of this
Agreement, the excess of the aggregate fair market value of the shares subject
to such new option immediately after consummation of such disposition of stock
or assets over the aggregate option price of such shares of the surviving
corporation shall not be more than the excess of the aggregate fair market value
of all shares subject to old Options immediately before consummation of such
disposition of stock or assets over the aggregate Option Price of such shares of
the Company, and the new option shall not give the Optionee additional benefits
which such Optionee did not have under the old Option or deprive the Optionee of
benefits which the Optionee had under the old Options. If such substitution of
options is effectuated, the Optionee's rights under the old Options shall
thereupon terminate.
5. Lock-Up Agreement for Initial Public Offering. Notwithstanding any
---------------------------------------------
provision in this Agreement to the contrary, the Optionee agrees that he or she
shall not offer, sell, contract to sell, transfer, assign, pledge, encumber,
hypothecate or otherwise dispose of or agree to dispose of any Optioned Shares
for a period (such period not to exceed twelve months from the effective date of
the Company's initial public offering of securities) as may be determined by the
Managing Underwriter of such offering. Optionee consents to entry of stop
transfer instructions with the Company's transfer agent in accordance with this
Section 3.
6. Termination of Employment
-------------------------
(a) In the event that the Optionee's employment with the Company or
service on the Company's Board of Directors is terminated for any reason other
than death or disability, any unexercised accrued installments of the Options
granted hereunder to such terminated Optionee shall expire and become
exercisable as of the earlier of: (i) the applicable Option Expiration Date or
(ii) a date three years after said termination occurs.
(b) In the event that the Optionee's employment with the Company is
terminated due to the death or disability of the Optionee, any unexercised
accrued installments of the Options granted hereunder to such Optionee shall
expire and become unexercisable as of the earlier of: (i) the applicable Option
Expiration Date, (ii) the first anniversary of the date of death of such
Optionee (if applicable); or (iii) the first anniversary of the date of
termination of employment by reason of disability (if applicable). Any such
accrued installments of a deceased Optionee may be exercised prior to their
expiration by (and only by) the person or persons to whom the Optionee's Option
rights shall pass by will or by the laws of descent and distribution, if
applicable, subject, however, to all of the terms and conditions of this
Agreement,
Page 2 of 4
<PAGE>
(c) For purposes of this Section 6, Optionee shall be deemed employed by
the Company during any period of leave of absence from active employment as
authorized by the Company.
7. Representations and Warranties. As a condition to the exercise of
------------------------------
any portion of an Option, the Company may require the person exercising such
Option to make any representation and/or warranty to the Company as may, in the
judgment of counsel to the Company, be required under any applicable law or
regulation, including but not limited to a representation and warranty that the
shares are being acquired only for investment and without any present intention
to sell or distribute such shares if, in the opinion of counsel for the Company,
such a representation is required under the Securities Act of 1933 or any other
applicable law, regulation or rule of any governmental agency. Optionee hereby
represents to the Company that each of the Options evidenced hereby and the
shares purchasable upon exercise thereof is being acquired only for investment,
for Optionee's own account and without any present intention to sell or
distribute such securities.
The sale of the securities which are the subject of this Agreement has not been
qualified with the Commissioner of Corporations of the State of California and
the issuance of such securities or the payment or receipt of my part of the
consideration therefor prior to such qualification is unlawful, unless the sale
of securities is exempt from the qualification by Section 25100, 25102, or 25105
of the California Corporations Code. The rights of the parties to this agreement
are expressly conditioned upon such qualification being obtained, unless the
sale is so exempt.
8. Options Not Transferable. The Option(s) may be exercised during the
------------------------
lifetime of the Optionee only by the Optionee. The Optionee's rights and
interests under this Agreement and in and to the Option(s) may not be sold,
pledged, hypothecated, assigned, encumbered, gifted or otherwise transferred in
any manner, either voluntarily or involuntarily by operation of law, except by
will or the laws of descent or distribution.
9. No Enlargement of Employee Rights. Nothing in this Agreement shall be
---------------------------------
construed to confer upon the Optionee (if an employee) any right to continued
employment with the Company (or an affiliated company), or to restrict in any
way the right of the Company (or an affiliated company if he is an employee
thereof) to terminate his or her employment. Optionee acknowledges that in the
absence of an express written employment agreement to the contrary, Optionee's
employment with the Company may be terminated by the Company at any time, with
or without cause.
10. Withholding of Taxes. Optionee authorizes the Company to withhold,
--------------------
in accordance with any applicable law, from any compensation payable to him or
her any taxes required to be withheld by federal, state or local law as a result
of the grant of the Option(s) or the issuance of stock pursuant to the exercise
of such Option(s).
11. Laws Applicable to Construction. This Agreement shall be governed by
-------------------------------
and construed and enforced in accordance with the laws of the State of
California.
12. Agreement Binding on Successors. The terms of this Agreement shall
-------------------------------
be binding upon the executors, administrators, heirs, successors, transferees
and assignees of the Optionee.
13. Costs of Litigation. In any action at law or in equity to enforce
-------------------
any of the provisions or rights under this Agreement or the program, the
unsuccessful party to such litigation, as determined by the court in a final
judgment or decree, shall pay the successful party or parties all costs,
expenses and reasonable attorneys' fees incurred by the successful party or
parties (including without limitation costs, expenses and fees on any appeals),
and if the successful party recovers judgment in any such action or proceeding
such costs, expenses and attorneys' fees shall be included as part of the
judgment.
Page 3 of 4
<PAGE>
14. Necessary Acts. The Optionee agrees to perform all acts and execute and
--------------
deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement, including but not limited to all acts and-
documents related to compliance with federal and/or state securities laws.
15. Counterparts. For convenience, this Agreement may be executed in any
------------
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
16. Invalid Provisions. In the event that any provision of this Agreement
------------------
is found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though
the invalid and unenforceable provision was not contained herein.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement effective as of the date first written hereinabove.
DCH TECHNOLOGY, INC. OPTIONEE
By: /s/ DAVID A. WALKER By: /s/ ROGER SCHLICHTIG
----------------------- -------------------------
David A. Walker, President Roger Schlichtig
2899 Agoura Rd. Apt. 373
----------------------------
Street Address
Westlake Village CA 91361
----------------------------
City and State
###-##-####
----------------------------
Social Security Number
By his or her signature below, the spouse of the Optionee, if such Optionee
be legally married as of the date of his or her execution of this Agreement,
acknowledges that he or she has read this Agreement and is familiar with the
terms and provisions hereof, and agrees to be bound by all the terms and
conditions of said Agreement.
/s/ Lina Blanco
---------------------------
Spouse
1-6-2000
---------------------------
Date
By his or her signature below the Optionee represents that he or she is not
legally married as of the date of execution of this Agreement.
---------------------------
Optionee
---------------------------
Date
Page 4 of 4
<PAGE>
EXHIBIT 23.2
CONSENT OF LUCAS, HORSFALL, MURPHY & PINDROH
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
DCH Technology, Inc.
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of DCH Technology, Inc. of our report dated February 22, 1999,
incorporated by reference in the Report on Form 10-SB of DCH Technology, Inc.
for the year ended December 31, 1998.
/s/ LUCAS, HORSFALL, MURPHY & PINDROH, LLP
------------------------------------------
Pasadena, CA
February 1, 2000
