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As filed with the Securities and Exchange Commission on September 15, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
NUMERICAL TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-3232104
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
70 West Plumeria Drive
San Jose, California 95134
(Address of principal executive offices)
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1997 Stock Plan
2000 Stock Plan
2000 Employee Stock Purchase Plan
(Full titles of the plans)
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Yagyensh C. Pati
President and Chief Executive Officer
NUMERICAL TECHNOLOGIES, INC.
70 West Plumeria Drive
San Jose, California 95134
(408) 919-1910
(Name, address and telephone number of agent for service)
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Copy to:
John V. Roos, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.0001 par value 3,888,322 $23.31 $90,619,475.39 $23,923.55
</TABLE>
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(1) Includes 965,030 shares to be registered under the 1997 Stock Plan (the
"1997 Plan"), 2,623,292 shares to be registered under the 2000 Stock Plan
(the "2000 Plan") and 300,000 shares to be registered under the 2000
Employee Stock Purchase Plan (the "Purchase Plan").
(2) The Proposed Maximum Offering Price Per Share was estimated in part pursuant
to Rule 457(h) under the Securities Act, and, in part, pursuant to Rule
457(c) under the Securities Act. With respect to (i) 965,030 shares which
are subject to outstanding options to purchase Common Stock under the 1997
Plan and (ii) 559,049 shares which are subject to outstanding options to
purchase Common Stock under the 2000 Plan, the Proposed Maximum Offering
Price Per Share was estimated pursuant to Rule 457(h) under which Rule the
per share price of options to purchase stock under an employee stock option
plan may be estimated by reference to the exercise price of such options.
The weighted average exercise price of the 965,030 shares subject to
outstanding options under the 1997 Plan to be registered is $1.43. The
weighted average exercise price of the 559,049 shares subject to outstanding
options under the 2000 Plan to be registered is $17.69. With respect to (i)
2,064,243 shares of Common Stock available for future grant under the 2000
Plan and (ii) 300,000 shares of Common Stock available for future grant
under the Purchase Plan, the Proposed Maximum Offering Price Per Share was
estimated pursuant to Rule 457(c) whereby the per share price was determined
by reference to the average between the high and low prices reported in the
Nasdaq National Market on September 14, 2000, which average was $33.5625.
The number referenced above in the table entitled "Proposed Maximum
Offering Price Per Share" represents a weighted average of the foregoing
estimates calculated in accordance with Rules 457(h) and 457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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We hereby incorporate by reference in this registration statement the
following documents:
(a) Our registration statement on Form S-1 (File No. 333-95695) and
amendments thereto, including the Prospectus dated April 7, 2000, filed for the
purpose of registering certain shares of our common stock under the Securities
Act of 1933, as amended (the "Securities Act"), in connection with our initial
public offering.
(b) Our Quarterly Reports on Form 10-Q for the fiscal quarters ended March
31, 2000 and June 30, 2000, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(c) The description of our common stock to be offered hereby is contained
in our registration statement on Form 8-A filed with the Securities and Exchange
Commission on March 20, 2000 pursuant to Section 12(g) of the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this registration statement which indicates that all securities
offered hereby have been sold or which deregisters all securities 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
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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The validity of the securities registered hereby has been passed upon for
us by Wilson Sonsini Goodrich & Rosati, Professional Corporation ("WSGR"), Palo
Alto, California. John V. Roos, a member of WSGR, owns 49,500 shares of our
common stock. A partnership investment account of WSGR owns 37,500 shares of
our common stock.
Item 6. Indemnification of Directors and Officers
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Our amended and restated certificate of incorporation limits the personal
liability of directors for breach of fiduciary duty to the maximum extent
permitted by Delaware law. Delaware law provides that directors of a
corporation will not be personally liable to us or our stockholders for monetary
damages for breach of their fiduciary duties as directors, except for:
. any breach of the director's duty of loyalty to us or our stockholders;
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. acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
. unlawful payments of dividends or unlawful stock repurchases,
redemptions or other distributions; or
. any transaction from which the director derived an improper personal
benefit.
Our bylaws require that we indemnify our directors and officers to the
extent permitted by Delaware law. We may, in our discretion, indemnify other
employees and agents to the extent permitted by Delaware law. We believe that
indemnification under our bylaws covers at least negligence and gross negligence
on the part of indemnified parties. Our bylaws also permit us to secure
insurance on behalf of any of our officers, directors, employees or other agents
for any liability incurred in that capacity or arising out of that status,
regardless of whether indemnification is permitted under Delaware law.
We have also entered into agreements to indemnify our directors and
officers. These agreements indemnify our directors and officers for some
expenses, including attorneys' fees, judgments, fines and settlement amounts
incurred by them in any action or proceeding, including any action by or in the
right of our company, arising out of their services as one of our directors or
officers, any of our subsidiaries or any other company or enterprise to which
the person provides services at our request. In addition, we have obtained
directors' and officers' insurance providing indemnification for some of our
directors, officers and employees for certain liabilities. We believe that
these provisions, agreements and insurance are necessary to attract and retain
qualified directors and officers.
The limited liability and indemnification provisions in our certificate
of incorporation and bylaws may discourage stockholders from bringing a lawsuit
against our directors for breach of their fiduciary duty and may reduce the
likelihood of derivative litigation against our directors and officers, even
though a derivative action, if successful, might otherwise benefit us and our
stockholders. Moreover, a stockholder's investment in us may be adversely
affected to the extent we pay the costs of settlement or damage awards against
our directors and officers under these indemnification provisions.
Item 7. Exemption From Registration Claimed
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Not applicable.
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Item 8. Exhibits
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4.1* 1997 Stock Plan and related agreements.
4.2* 2000 Stock Plan and related agreements.
4.3* 2000 Employee Stock Purchase Plan and related agreements.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the legality
of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-5).
_________
* Incorporated by reference to registration statement on Form S-1 (File No.
333-95695) as declared effective by the Securities and Exchange Commission on
April 6, 2000.
Item 9. Undertakings
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(a) Rule 415 Offering 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, 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) Filings incorporating subsequent Exchange Act documents by reference
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The undersigned 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 an 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.
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(c) Request for acceleration of effective date or filing of registration
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statement on Form S-8
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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 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.
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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 San Jose, State of California, on September 15, 2000.
NUMERICAL TECHNOLOGIES, INC.
By: /S/ Yagyensh C. Pati
_____________________________________________
Yagyensh C. Pati
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Yagyensh C. Pati and Richard Mora,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any 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 his substitute or substitutes, may do or cause to be done by virtue
hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
President and Chief Executive Officer and September 15, 2000
/s/ Yagyensh C. Pati Director (Principal Executive Officer)
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(Yagyensh C. Pati)
/s/ Richard Mora Chief Financial Officer and Vice President, September 15, 2000
------------------------------------ Operations (Principal Financial and
(Richard Mora) Accounting Officer)
/s/ William Davidow Chairman of the Board September 15, 2000
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(William Davidow)
/s/ Yao-Ting Wang Director and Chief Technology Officer September 15, 2000
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(Yao-Ting Wang)
Director September __, 2000
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(Abbas El Gamal)
/s/ Narendra Gupta Director September 15, 2000
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(Narendra Gupta)
Director September __, 2000
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(Harvey Jones)
Director September __, 2000
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(Thomas Kailath)
/s/ Roger Sturgeon Director September 15, 2000
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(Roger Sturgeon)
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NUMERICAL TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit
Number Description
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4.1* 1997 Stock Plan and related agreements.
4.2* 2000 Stock Plan and related agreements.
4.3* 2000 Employee Stock Purchase Plan and related agreements.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the
legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-5).
________
* Incorporated by reference to registration statement on Form S-1 (File No.
333-95695) as declared effective by the Securities and Exchange Commission on
April 6, 2000.
