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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 28, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
XICOR, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
CALIFORNIA 94-2526781
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
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1511 BUCKEYE DRIVE
MILPITAS, CA 95035
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
XICOR, INC.
1998 NONSTATUTORY STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
RAPHAEL KLEIN
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
XICOR, INC.
1511 BUCKEYE DRIVE
MILPITAS, CA 95035
(408) 432-8888
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copies to:
PAGE MAILLIARD, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
CALCULATION OF REGISTRATION FEE
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====================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
without par value................... 1,000,000 shares $ 20.4375 $ 20,437,500 $ 5,395.50
--------- ------------- ----------
====================================================================================================================================
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(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the prospectus delivered to participants under the
Registrant's 1998 Nonstatutory Stock Option Plan, as amended (the "1998
Plan"), also relates to 250,000 shares previously registered under Form
S-8, Registration No. 33-83563.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of computing the amount of the
registration fee based on the average of the high and low prices per share
of the Company's Common Stock as reported on the Nasdaq National Market
System on January 25, 2000.
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XICOR, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information previously filed with the Securities and
Exchange Commission:
(1) Xicor, Inc.'s (the "Company's") Annual Report on Form 10-K for the fiscal
year ended December 31, 1998, filed pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended
April 4, 1999, July 4, 1999 and October 3, 1999. All reports were filed
pursuant to Section 13 of the Exchange Act.
(3) The description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A (File No. 0-9653), filed pursuant to
Section 12(g) of the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or that deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing such
documents.
The documents incorporated by reference herein contain forward-looking
statements that involve risks and uncertainties. The Company's actual results
may differ significantly from the results discussed in the forward-looking
statements. Factors that might cause such a difference include, but are not
limited to, the risks identified in the respective documents incorporated by
reference.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Company provide (subject to certain limitations) for
indemnification of agents of the Company, including officers and directors, who
were or are parties or are threatened to be made parties to any action or
proceeding against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with all threatened, pending or
completed actions or proceedings, including civil, criminal, administrative,
arbitration and investigative actions and proceedings, including any appeal
thereof, that arise by reason of the fact that any such persons are or were
agents of the Company. Section 317 of the California Corporations Code
authorizes a court to award, or a Company's Board of Directors to grant,
indemnity to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). The Company's Amended and Restated Articles
of Incorporation provide for indemnification of directors to the maximum extent
permitted by California law. Pursuant to the authority provided in its Amended
and Restated Articles of Incorporation, the Company has entered into
indemnification agreements with each of its officers and directors, indemnifying
them against certain potential liabilities that may arise as a result of their
service to the Company, and providing for certain other protections.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is therefore
unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number
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<S> <C>
4.1* Xicor, Inc. 1998 Nonstatutory Stock Option Plan with form of Stock Option Agreement.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati as to legality of securities being registered.
23.1 Consent of Independent Accountants (PricewaterhouseCoopers LLP).
23.2 Consent of Wilson Sonsini Goodrich & Rosati (Included in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
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</TABLE>
* Incorporated by reference to the exhibit filed with the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on July
23, 1999.
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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 Securities Act;
(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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
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 the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
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) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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.
(c) 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 California General Corporation Law, the Amended and
Restated Articles of Incorporation and the Amended Bylaws of the Company,
Indemnification Agreements entered into between the Registrant and its officers
and directors, 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 and is, therefore, unenforceable. In
the event that a claim for indemnification
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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 hereunder, 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 Milpitas, State of California, on January 26, 2000.
XICOR, INC.
By: /s/ Raphael Klein
----------------------------
Raphael Klein, Chairman of the Board
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Raphael Klein and Geraldine N. Hench,
each of them, jointly and severally, his or her attorneys-in-fact, each with the
power of substitution, for him or her 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 his substitute or substitutes, 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 below by the following persons in the capacities and
on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Raphael Klein Chairman of the Board and Chief Executive January 26, 2000
- ---------------------------------- Officer (Principal Executive Officer)
(Raphael Klein)
/s/ Julius Blank Director January 26, 2000
- ----------------------------------
(Julius Blank)
/s/ Bruce Gray Director and President and Chief Operating January 26, 2000
- ---------------------------------- Officer
(Bruce Gray)
/s/ Andrew W. Elder Director January 26, 2000
- ----------------------------------
(Andrew W. Elder)
/s/ Geoffrey C. Winkler Director January 26, 2000
- ----------------------------------
(Geoffrey C. Winkler)
/s/ Geraldine N. Hench Vice President, Finance and Chief January 26, 2000
- ---------------------------------- Financial Officer (Principal Financial
(Geraldine N. Hench) Officer and Principal Accounting Officer)
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XICOR, INC.
INDEX TO EXHIBITS
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Exhibit
Number
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4.1* Xicor, Inc. 1998 Nonstatutory Stock Option Plan with form of Stock Option Agreement.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati as to legality of securities being registered.
23.1 Consent of Independent Accountants (PricewaterhouseCoopers LLP).
23.2 Consent of Wilson Sonsini Goodrich & Rosati (Included in Exhibit 5.1).
24.1 Power of Attorney (See page II-5).
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</TABLE>
* Incorporated by reference to the exhibit filed with the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on July
23, 1999.
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EXHIBIT 5.1
January 26, 2000
Xicor, Inc.
1511 Buckeye Drive
Milpitas, CA 94035
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about January 26, 2000 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 1,000,000 shares of Xicor, Inc. Common
Stock (the "Shares") reserved for issuance under the 1998 Nonstatutory Stock
Option Plan (the "Plan"). As your counsel in connection with the transaction, we
have examined the proceedings taken and proposed to be taken in connection with
the issuance, sale and payment of consideration for the Shares to be issued
under the Plan.
It is our opinion that, when issued and sold in compliance with applicable
prospectus delivery requirements and in the manner referred to in the Plan and
pursuant to the agreements which accompany the Plan, the Shares will be legally
and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati
-------------------------------------
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 27, 1999 which appears on page
15 of the 1998 Annual Report to Shareholders of Xicor, Inc., which is
incorporated by reference in Xicor, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
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PRICEWATERHOUSECOOPERS LLP
San Jose, California
January 26, 2000
