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As filed with the Securities and Exchange Commission on September 28, 2000
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SIMPLE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0399154
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
3001 DAIMLER STREET
SANTA ANA, CALIFORNIA 92705-5812
(Address of principal executive offices) (Zip Code)
SIMPLE TECHNOLOGY, INC.
2000 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
MANOUCH MOSHAYEDI
CHIEF EXECUTIVE OFFICER
SIMPLE TECHNOLOGY, INC.
3001 DAIMLER STREET
SANTA ANA, CALIFORNIA 92705-5812
(Name and address of agent for service)
(949) 476-1180
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price(2) Fee
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2000 STOCK INCENTIVE PLAN
Common Stock, $0.001 par value 7,033,005 shares $11.00(2) $77,363,055(2) $20,423.85
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EMPLOYEE STOCK PURCHASE PLAN
Common Stock, $0.001 par value 360,000 shares $11.00(2) $3,960,000 (2) $1,045.44
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Aggregate Registration Fee $21,469.29
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 2000 Stock
Incentive Plan and the Employee Stock Purchase Plan by reason of any
stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
which results in an increase in the number of the outstanding shares of
Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the highest
proposed selling price per share of the Registrant's Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Simple Technology, Inc. (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's Registration Statement No. 333-32478 on Form
S-1 filed with the Commission on March 15, 2000, as amended on
Form S-1/A filed with the Commission on June 30, 2000, July
28, 2000, and September 6, 2000 and September 27, 2000,
respectively;
(b) The Registrant's Registration Statement No. 000-31623 on Form
8-A filed with the Commission on September 26, 2000 pursuant
to Section 12(g) of the Securities Exchange Act of 1934 (the
"1934 Act"), in which there is described the terms, rights,
and provisions applicable to the Registrant's outstanding
Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act, after
the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which de-registers all securities then remaining unsold
shall be deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Articles of Incorporation limit the
personal liability of its directors for monetary damages to the fullest extent
permitted by the California General Corporation Law. Under California law, a
director's liability to a company or its shareholders may not be limited:
- for acts or omissions that involve intentional misconduct or a knowing
and culpable violation of law;
- for acts or omissions that a director believes to be contrary to the
best interests of the company or its shareholders or that involve the
absence of good faith on the part of the director;
- for any transaction from which a director derived an improper personal
benefit;
- for acts or omissions that show a reckless disregard for the director's
duty to the company or its shareholders in circumstances in which the
director was aware, or should have been aware, in the ordinary course
of performing the director's duties, of a risk of serious injury to the
company or its shareholders;
- for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the
company or its shareholders;
- under Section 310 of the California General Corporation Law concerning
contracts or transactions between the company and a director; or
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- under Section 316 of the California General Corporation Law concerning
directors' liability for improper dividends, loans and guarantees.
The limitation of liability does not affect the availability of injunctions and
other equitable remedies available to the Registrant's shareholders for any
violation by a director of the director's fiduciary duty to the Registrant or
its shareholders.
The Registrant's Amended and Restated Articles of Incorporation also include
an authorization for it to indemnify its "agents" (as defined in Section 317
of the California General Corporation Law) through bylaw provisions, by
agreement with the agents, vote of the Registrant's shareholders or
disinterested directors, or otherwise, to the fullest extent permitted by
law. Pursuant to this provision, the Registrant's Amended and Restated Bylaws
provide for indemnification of its directors, officers and employees. In
addition, the Registrant may, at its discretion, provide indemnification to
persons whom the Registrant is not obligated to indemnify. The Amended and
Restated Bylaws also allow the Registrant to enter into indemnity agreements
with individual directors, officers, employees and other agents. Indemnity
agreements have been entered into with all directors and certain executive
officers and provide the maximum indemnification permitted by law. The
Registrant also currently maintains directors' and officers' liability
insurance. These agreements, together with the Registrant's Amended and
Restated Bylaws and Amended and Restated Articles of Incorporation, may
require the Registrant, among other things, to indemnify its directors and
executive officers, other than for liability resulting from willful
misconduct of a culpable nature, and to advance their expenses incurred as a
result of any proceeding against them as to which they could be indemnified,
and obtain officers' and directors' liability insurance if it is maintained
for other officers and directors. These agreements do not require us to
indemnify our directors and officers in situations where:
- the remuneration rendered against the Registrant's officer or
director is determined by final judgment or other final
adjudication that such remuneration was in violation of law;
- a judgment is rendered against the Registrant's officer or
director for an accounting for profits made from the sale of the
Registrant's securities under the provisions of Section 16(b) of
the 1934 Act, as amended, or similar provisions of any federal,
state or local statutory laws;
- the officer's or director's conduct is adjudged to have been
knowingly fraudulent or deliberately dishonest, or constitutes
willful misconduct; or
- a court determines that indemnification under the circumstances is
not lawful.
Section 317 of the California General Corporation Law and the Registrant's
Amended and Restated Bylaws and its indemnification agreements make provision
for the indemnification of officers, directors and other corporate agents in
terms sufficiently broad to indemnify such persons, under certain circumstances,
for liabilities, including reimbursement of expenses incurred, arising under the
1933 Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
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EXHIBIT NUMBER EXHIBIT
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4 Instruments Defining the Rights of Shareholders.
Reference is made to Registrant's Registration
Statement No. 000-31623 on Form 8-A, together with
the exhibits thereto, which are incorporated herein
by reference pursuant to Item 3(b) to this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Public Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is
contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1 Simple Technology, Inc. 2000 Stock Incentive Plan (As
Amended and Restated Through July 26, 2000).
99.2 Simple Technology, Inc. Employee Stock Purchase Plan
(As Amended and Restated Through July 26, 2000).
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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: (i) to include any
prospectus required by Section 10(a)(3) of the 1933 Act, (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 and (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
clauses (1)(i) and (1)(ii) shall not apply if the information required to be
included in a post-effective amendment by those clauses is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 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; and (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 Registrant's 2000 Stock
Incentive Plan or the Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into 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. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons
of the Registrant pursuant to the indemnification provisions summarized in
Item 6 or otherwise, the Registrant has been advised that, in the opinion of
the Commission, such indemnification is against public policy as expressed in
the 1933 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 1933 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, as amended,
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 Santa Ana, California on this 28th
day of September, 2000.
SIMPLE TECHNOLOGY, INC.
By: /s/ Manouch Moshayedi
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Manouch Moshayedi
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That each person whose signature appears below constitutes and appoints
Manouch Moshayedi, Chief Executive Officer, and Dan Moses, Chief Financial
Officer, and each of them, as such person's true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for such
person and in such person's name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this
Registration Statement, and to file same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any
of them, or their or his or her substitutes, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated:
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Manouch Moshayedi
--------------------------- Chief Executive Officer September 28, 2000
Manouch Moshayedi and Chairman of the Board of Directors
(principal executive officer)
/s/ Dan Moses
--------------------------- Chief Financial Officer and Director September 28, 2000
Dan Moses (principal financial and accounting officer)
/s/ Mike Moshayedi
-------------------------- President and Director September 28, 2000
Mike Moshayedi
/s/ Mark Moshayedi
-------------------------- Chief Operating Officer, Chief Technical September 28, 2000
Mark Moshayedi Officer, Secretary and Director
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EXHIBIT INDEX
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EXHIBIT NUMBER EXHIBIT
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4 Instruments Defining the Rights of Shareholders.
Reference is made to Registrant's Registration
Statement No. 000-31623 on Form 8-A, together with
the exhibits thereto, which are incorporated herein
by reference pursuant to Item 3(b) to this
Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Public Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is
contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1 Simple Technology, Inc. 2000 Stock Incentive Plan
(As Amended and Restated Through July 26, 2000).
99.2 Simple Technology, Inc. Employee Stock Purchase
Plan (As Amended and Restated Through
July 26, 2000).
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