The Index to Exhibits is on Page II-6 of this document.
As filed with the Securities and Exchange Commission on June 28, 1999
Registration No. 333- __________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
-------------------------------------
ZILOG, INC.
(Exact name of issuer as specified in its charter)
Delaware 13-3092996
- --------------------- -----------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
910 East Hamilton Avenue
Campbell, California 95008
(408) 558-8500
(Address and Telephone Number of Registrant's Principal Executive Offices)
--------------------
1998 Long Term Stock Incentive Plan
1998 Executive Officer Incentive Plan
(Full Title of the Plans)
Curtis J. Crawford
President and Chief Executive Officer
Zilog, Inc.
910 East Hamilton Avenue
Campbell, CA 95008
(408) 558-8500
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Dennis R. DeBroeck, Esq.
Andrew J. Schultheis, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
==============================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered Share Price Fee
- ---------------------- ------------- --------- ------------- -----------
<S> <C> <C> <C> <C>
Common Stock, $0.01
par value.......... 854,930 (1) $2.50 (2) $2,137,325 (2) $600
Common Stock, $0.01
par value.......... 6,945,070 (3) $2.86 (4) $19,862,675 (4) $5,550
==============================================================================
</TABLE>
(1) Shares available for grant as of June 25, 1999 under the 1998
Long Term Stock Incentive Plan and the 1998 Executive Officer
Incentive Plan.
(2) Estimated as of June 25, 1999 pursuant to Rule 457(a) solely
for the purpose of calculating the registration fee.
(3) Shares subject to outstanding options granted under the 1998
Long Term Stock Incentive Plan and the 1998 Executive Officer
Incentive Plan.
(4) Represents weighted average per share exercise price for such
outstanding options pursuant to Rule 457(h)(1).
ZILOG, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Securities and Exchange Commission
(the "Commission") is incorporated herein by reference.
The Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 4, 1999, as filed with the Commission is incorporated herein
by reference.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
registered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Authorized Capital Stock
The authorized capital stock of Zilog consists of 70,000,000 shares
of Common Stock, par value $0.01 per share, 30,000,000 shares of Class A
Non-Voting Common Stock, par value $0.01 per share and 5,000,000 shares
of Preferred Stock, par value $100.00 per share.
Common Stock
Holders of Common Stock are entitled to one vote per share on all
matters submitted to a vote of stockholders. Approval of matters brought
before the stockholders will require the affirmative vote of a majority
of the holders of the outstanding shares of Common Stock, except as
otherwise required by the General Corporation Law of the State of
Delaware (the "DGCL").
Subject to the rights of holders of Preferred Stock and other
classes and/or series of preferred stock, if any, all shares of Common
Stock are entitled to share in such dividends as the Board of Directors
may from time to time declare from sources legally available therefor.
Subject to the rights of creditors and holders of Preferred Stock and
other classes and/or series of preferred stock, if any, holders of Common
Stock are entitled to share ratably in a distribution of assets of the
registrant upon any liquidation, dissolution or winding up of the
registrant.
Preferred Stock
There are currently 250,000 shares of Series A Cumulative Preferred
Stock outstanding. Under the Registrant's Restated Certificate of
Incorporation, the Board of Directors has the authority to issue, from
time to time, by resolution and without any action by stockholders, up to
5,000,000 shares of preferred stock, par value $100.00 per share, in one
or more classes and/or series and may establish the powers, designations,
preferences, rights and qualifications, limitations or restrictions
(which may differ with respect to each such class and/or series) of such
class and/or series. The Series A Cumulative Preferred Stock is a non-
voting, 13.5% pay-in-kind preferred stock with a stated value of $100.00
per share.
The Series A Cumulative Preferred Stock accumulates dividends at
the rate of 13.5% per annum (payable quarterly) for periods ending on or
prior to the anniversary of the effective date of the merger in which TPG
Zeus Acquisition Corporation, a Delaware corporation merged with and into
the Registrant, with the Registrant continuing as the surviving
corporation (the "Effective Time") in 2008, and 15.5% per annum
thereafter. Dividends will be payable, at the election of the Board of
Directors but subject to availability of funds and the terms of the
Registrant's senior secured Financing Agreement between the CIT
Group/Business Credit, Inc. and the Registrant dated July 30, 1998 (the
"Credit Facility"), in cash or in kind through a corresponding increase
in the liquidation preference (as described below) of the Series A
Cumulative Preferred Stock. The Series A Cumulative Preferred Stock has
an initial liquidation preference of $100.00 per share.
To the extent that a quarterly dividend payment in respect of a
share of Series A Cumulative Preferred Stock is not made in cash when
due, the amount of such unpaid dividend will accumulate (whether or not
declared by the Board of Directors) through an increase in the
liquidation preference of such share of Series A Cumulative Preferred
Stock equal to the amount of such unpaid dividend, and compounding
dividends will accumulate on all such accumulated and unpaid dividends.
The liquidation preference will be reduced to the extent that previously
accumulated dividends are thereafter paid in cash. The Registrant is
required on the anniversary of the Effective Time in 2008 to pay in cash
all accumulated dividends that have been applied to increase the
liquidation preference (the "Clean-Down").
Shares of Series A Cumulative Preferred Stock may be redeemed at
the option of the Issuer, in whole or in part, at the redemption prices
ranging from 105%, if redeemed prior to the six-month anniversary of the
Effective Time in 1998, to 100%, if redeemed after the six-month
anniversary of the Effective Time in 2003, in each case of the sum of (i)
the liquidation preference thereof, increased to the extent that
accumulated dividends thereon shall not have been paid in cash, plus (ii)
accrued and unpaid dividends thereon to the date of redemption. Optional
redemption of the Series A Cumulative Preferred Stock will be subject to,
and expressly conditioned upon, certain limitations under the Credit
Facility.
In certain circumstances, including the occurrence of a change of
control of the Issuer, but again subject to certain limitations under the
Credit Facility, the Issuer may be required to repurchase shares of
Series A Cumulative Preferred Stock at 101% of the sum of the liquidation
preference thereof, increased to the extent that accumulated dividends
thereon shall not have been paid in cash, plus accumulated and unpaid
dividends to the repurchase date.
Holders of Series A Cumulative Preferred Stock do not have any
voting rights with respect thereto, except for (i) such rights as are
provided under the DGCL, (ii) the right to elect, as a class, one
director of the Issuer in the event that the Issuer fails to comply with
its Clean-Down or repurchase obligations and (iii) class voting rights
with respect to transactions adversely affecting the rights, preferences
or powers of the Series A Cumulative Preferred Stock and certain
transactions involving stock that ranks junior in payment of dividends,
or upon liquidation, to the Series A Cumulative Preferred Stock.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers and Limitation of
Liability.
Section 145 of the Delaware General Corporation Law ("DGCL")
permits Zilog's board of directors to indemnify any person against
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in
connection with any threatened, pending or completed action, suit or
proceeding in which such person is made a party by reason of his or her
being or having been a director, officer, employee or agent of Zilog, 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
"Act"). The statute provides that indemnification pursuant to its
provisions is not exclusive of other rights of indemnification to which a
person may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise.
Article IX of Zilog's Certificate of Incorporation provides for
indemnification of its directors, officers, employees and other agents to
the fullest extent permitted by law.
As permitted by sections 102 and 145 of the DGCL, Zilog's
Certificate of Incorporation eliminates a director's personal liability
for monetary damages to Zilog and its stockholders arising from a breach
or alleged breach of a director's fiduciary duty except for liability
under section 174 of the DGCL or liability for any breach of the
director's duty of loyalty to Zilog or its stockholders, for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law or for any transaction from which the director
derived an improper personal benefit.
In addition, Zilog maintains officers' and directors' insurance
covering certain liabilities that may be incurred by officers and
directors in the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.01 Registrant's Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-4 declared
effective by the Commission on July 9, 1998 (the "Form
S-4")).
4.02 Registrant's Certificate of Amendment to Certificate of
Incorporation (incorporated herein by reference to
Exhibit 3.5 of the Registrant's Quarterly Report on Form
10-Q for the Quarter ended September 30, 1998 (the
"September 1998 Form 10-Q")).
4.03 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.3 of the Form S-4).
4.04 Registrant's 1998 Long Term Stock Incentive Plan
(incorporated herein by reference to Exhibit 10.17 of
the September 1998 Form 10-Q).
4.05 Registrant's 1998 Executive Officer Incentive Plan
(incorporated herein by reference to Exhibit 10.18 of
the September 1998 Form 10-Q).
4.06 Employment Agreement, dated as of March 1, 1998, by and
between Curtis Crawford and TPG Partners II, L.P.
(incorporated herein by reference to Exhibit 10.15 of
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
24.01 Power of Attorney (see page 5).
Item 9. Undertakings.
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; and
(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 (1)(i) and (1)(ii) above
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 Exchange Act that are incorporated by
reference 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.
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.
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 provisions discussed in Item 6
hereof, or otherwise, the Registrant has been advised that in the opinion
of the 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 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 hereby, 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.
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 Campbell, State of
California, on this 28th day of June, 1999.
ZILOG, INC.
By: /s/ JAMES M. THORBURN
-------------------------------------
James M. Thorburn
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Curtis J. Crawford and
Richard R. Pickard, and each of them, his true and lawful attorneys-in-
fact and agents with full power of substitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this
Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all 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 and
about the premises, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or his, her or their
substitute or substitutes, may lawfully do or cause to be done or by
virtue hereof.
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.
Name Title Date
- --------------------------- --------------------------------- ---------------
Principal Executive Officer:
/s/ CURTIS J. CRAWFORD President, Chief Executive Officer June 25, 1999
- --------------------------- and Director
Curtis J. Crawford
Principal Financial Officer and
Principal Accounting Officer:
/s/ JAMES M. THORBURN Senior Vice President and June 25, 1999
- --------------------------- Chief Financial Officer
James M. Thorburn
Additional Directors:
/s/ RICHARD S. FRIEDLAND Director June 25, 1999
- ---------------------------
Richard S. Friedland
Director June , 1999
- ---------------------------
Murray A. Goldman
Director June , 1999
- ---------------------------
William S. Price
/s/ DAVID M. STANTON Director June 25, 1999
- ---------------------------
David M. Stanton
<PAGE>
Exhibit Index
Exhibit No. Description
4.01 Registrant's Restated Certificate of Incorporation
(incorporated herein by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-4 declared
effective by the Commission on July 9, 1998 (the "Form
S-4")).
4.02 Registrant's Certificate of Amendment to Certificate of
Incorporation (incorporated herein by reference to
Exhibit 3.5 of the Registrant's Quarterly Report on Form
10-Q for the Quarter ended September 30, 1998 (the
"September 1998 Form 10-Q")).
4.03 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.3 of the Form S-4).
4.04 Registrant's 1998 Long Term Stock Incentive Plan
(incorporated herein by reference to Exhibit 10.17 of
the September 1998 Form 10-Q).
4.05 Registrant's 1998 Executive Officer Incentive Plan
(incorporated herein by reference to Exhibit 10.18 of
the September 1998 Form 10-Q).
4.06 Employment Agreement, dated as of March 1, 1998, by and
between Curtis Crawford and TPG Partners II, L.P.
(incorporated herein by reference to Exhibit 10.15 of
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of Ernst & Young LLP, independent auditors.
24.01 Power of Attorney (see page 5).
Exhibit 5.1
June 25, 1999
Zilog, Inc.
910 East Hamilton Avenue
Campbell, CA 95008
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on
Form S-8 (the "Registration Statement") to be filed by you with the
Securities and Exchange Commission (the "Commission") on or about June
28, 1999 in connection with the registration under the Securities Act of
1933, as amended, of an aggregate of 7,800,000 shares of your Common
Stock (the "Stock"), all of which are subject to issuance by you upon the
exercise of (a) stock options granted or to be granted by you under your
1998 Long Term Stock Incentive Plan (the "Long Term Plan"); or (b) stock
options granted or to be granted by you under your 1998 Executive Officer
Incentive Plan (the "Executive Officer Plan"). The plans referred to in
clauses (a) and (b) above are collectively referred to in this letter as
the "Plans". In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-4 (File No. 333-51203)
declared effective by the Commission on July 9, 1998,
together with the exhibits filed as a part thereof or
incorporated by reference therein;
(2) the Registration Statement, together with the exhibits filed
as a part thereof or incorporated by reference therein;
(3) the Prospectuses prepared in connection with the Registration
Statement;
(4) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in
your minute books that are in our possession;
(5) the stock records that you have provided to us and a list of
option and warrant holders respecting your capital and of any
rights to purchase capital stock that was prepared by you and
dated of even date herewith verifying the number of such
issued and outstanding securities);
(6) a Management Certificate addressed to us and dated of even
date herewith executed by the Company containing certain
factual and other representations; and
(7) your Application for Qualification by Coordination to be
submitted by the Company with the State of California
Department of Corporations immediately subsequent to the
effectiveness of the Registration Statement.
We have also confirmed the continued effectiveness of your
registration under the Securities Exchange Act of 1934, as amended, by
telephone call to the offices of the Commission and have confirmed your
eligibility to use Form S-8.
In our examination of documents for purposes of this opinion, we
have assumed, and express no opinion as to, the genuineness of all
signatures on original documents, the authenticity and completeness of
all documents submitted to us as originals, the conformity to originals
and completeness of all documents submitted to us as copies, the legal
capacity of all natural persons executing the same, the lack of any
undisclosed termination, modification, waiver or amendment to any
document reviewed by us and the due authorization, execution and delivery
of all documents where due execution and delivery are prerequisites to
the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied
solely upon our examination of the documents referred to above and have
assumed the current accuracy and completeness of the information obtained
from records referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such
information or to determine the existence or non-existence of any other
factual matters; however, we are not aware of any facts that would cause
us to believe that the opinion expressed herein is not accurate.
We are admitted to practice law in the State of California, and we
express no opinion herein with respect to the application or effect of
the laws of any jurisdiction other than the existing laws of the United
States of America and the State of California and (without reference to
case law or secondary sources) the existing Delaware General Corporation
Law.
In preparing the opinion set forth herein, we have relied on the
interpretations that are contained in The 1989 Report of the Committee on
Corporations of the Business Law Section of the State Bar of California
Regarding Legal Opinions in Business Transactions (August 1989), and such
interpretations govern the opinion set forth herein.
Based upon the foregoing, it is our opinion that the 7,800,000
shares of Stock that may be issued and sold by you upon the exercise of
(a) stock options granted or to be granted under the Long Term Plan, or
(b) stock options granted or to be granted or shares of the Company's
common stock issued or to be issued under the Executive Officer Plan,
when issued and sold in accordance with the applicable plan and stock
option or purchase agreements to be entered into thereunder and in the
manner referred to in the relevant Prospectus associated with the
Registration Statement, will be validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us, if
any, in the Registration Statement, the Prospectus constituting a part
thereof and any amendments thereto.
This opinion speaks only as of its date and we assume no obligation
to update this opinion should circumstances change after the date hereof.
This opinion is intended solely for the your use as an exhibit to the
Registration Statement for the purpose of the above sale of the Stock and
is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Dennis R. DeBroeck
----------------------------
Exhibit 23.02
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1998 Long Term Stock Incentive
Plan and the 1998 Executive Officer Incentive Plan of Zilog Inc. of our
report dated January 18, 1999, with respect to the consolidated financial
statements and schedule of Zilog Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
June 25, 1999
