As filed with the Securities and Exchange Commission on October 2, 1995.
Registration No. 33-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INTEGRATED DEVICE TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-2669985
-------------------------------------- ----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2975 Stender Way
Santa Clara, California 95054
-------------------------------------- ----------------------------
(Address of Principal Executive Office) (Zip Code)
INTEGRATED DEVICE TECHNOLOGY, INC.
1994 STOCK OPTION PLAN
(Full title of the plan)
JACK MENACHE Copy to:
Vice President, General Counsel Robert A. Freedman , Esq.
and Secretary Fenwick & West
Integrated Device Technology, Inc. Two Palo Alto Square
2975 Stender Way Suite 800
Santa Clara, California 95054 Palo Alto, California 94306
(408) 727-6116 (415) 494-060
-------------------------------------- ----------------------------
(Name, address and telephone (Counsel to the Registrant)
number, including area code,
of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------
<CAPTION>
Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered(1) per Share(2) Offering Price(2) Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 4,000,000 shares $25.5625 $102,250,000 $35,259.00
- --------------------------------------------------------------------------------------------------------
(1) Additional shares available for grant and not subject to outstanding
options under the Registrant's 1994 Stock Option Plan. Reflects a
two-for-one split of the Registrant's Common Stock, effected in the form
of a stock dividend, in September 1995.
(2) Calculated in accordance with Rule 457 under the Securities Act of 1933
and based upon an average of the high and low prices reported by the
National Association of Securities Dealers, Inc. Automated Quotation
System on September 28, 1995.
</TABLE>
-------------------------------
The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (the "Securities Act") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
April 2, 1995, filed pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act").
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
July 2, 1995 filed pursuant to Section 13 of the Exchange Act.
(3) The description of the Company's Common Stock to be offered hereby
which is contained in its Registration Statement on Form 8-B filed
September 24, 1987, as amended by the Company's Form 8 dated March 28,
1989, and the Company's Registration Statement on Form 8-A dated December
20, 1988, as amended by the Company's Form 8 dated February 27, 1992.
All documents filed by the Company pursuant to Sections 13(a) and (c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement, and
prior to the filing of a post-effective amendment which indicates that all
securities offered 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.
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<PAGE>
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a corporation
to grant indemnification to directors, officers and other agents in terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities, including expenses, arising in connection with the Securities Act
of 1933, as amended. Pursuant to the Bylaws of the Company, directors and
officers of the Company are indemnified to the fullest extent permitted by law
against all expenses (including attorneys' fees), judgments, fines or settlement
amounts incurred or paid by them in any action or proceeding, including any
action by or on behalf of the Company, on account of their service as an officer
or director of the Company. The Bylaws further provide that the rights conferred
under such Bylaws shall not be deemed exclusive of any other right to which such
persons may be entitled under Delaware General Corporation Law, the Company's
Certificate of Incorporation, any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise. The Restated Certificate of Incorporation
of the Company, as amended, precludes, with certain exceptions, the Company and
its stockholders from recovering monetary damages from directors for business
decisions that breach such directors' fiduciary duty.
The Company also maintains directors and officers insurance policies which
insure directors and officers against losses arising from certain wrongful acts
in their official capacities and reimburses the Company for such loss for which
the Company has lawfully indemnified the directors and officers. In addition,
the Company has entered into an Indemnification Agreement with each of its
directors and officers whereby the Company has agreed to indemnify each director
and officer from and against any and all expenses, losses, claims, damages and
liabilities incurred by such director or officer while acting in his or her
official capacity.
The Underwriting Agreement among the Company and the underwriters of the
Company's May 1995 public offering contains certain provisions pursuant to which
the underwriters may, under certain circumstances, indemnify the directors and
officers of the Company. Directors and officers of the Company may also be
indemnified in certain circumstances under the terms of other underwriting
agreements entered into by the Company in connection with prior public
offerings.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
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;
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<PAGE>
(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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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 Registration Statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed 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
(b) The undersigned Registrant hereby further 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.
(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 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
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, 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.
- 4 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Clara, State of California, on September 29,
1995.
INTEGRATED DEVICE TECHNOLOGY, INC.
By: /s/Jack Menache
----------------------------------
Jack Menache,
Vice President, General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Leonard C. Perham and Jack Menache, and each of
them, his or her true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his 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 the same,
with 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, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or his substitute or substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated:
Signature Title Date
- ---------------------- Chairman of the Board of Directors September __, 1995
D. John Carey
/s/Leonard C. Perham Chief Executive Officer (Principal September 29, 1995
- ---------------------- Executive Officer), President and
Leonard C. Perham Director
/s/William D. Snyder Vice President, Finance and September 29, 1995
- ---------------------- Chief Financial Officer (Principal
William D. Snyder Financial and Accounting Officer)
/s/Carl E. Berg Director September 29, 1995
- ----------------------
Carl E. Berg
/s/John C. Bolger Director September 29, 1995
- ----------------------
John C. Bolger
- ---------------------- Director September __, 1995
Federico Faggin
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<PAGE>
INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
4.1* Restated Certificate of Incorporation (previously
filed as Exhibit 3A to the Registration Statement on
Form 8-B dated September 23, 1987).
4.2* Certificate of Amendment of Restated Certificate of
Incorporation (previously filed as Exhibit 3(a) to the
Registration Statement on Form 8 dated March 28, 1989).
4.3 Certificate of Amendment of Restated Certificate of
Incorporation.
4.4* Certificate of Designation, Preferences and Rights of
Series A Junior Participating Preferred Stock
(previously filed as Exhibit 3(a) to the Registration
Statement on Form 8 dated March 28, 1989).
4.5* Bylaws (previously filed as Exhibit 3.4 to Annual
Report on Form 10-K for the fiscal year ended March
28, 1993).
4.6* Amended and Restated Rights Agreement dated as of
February 27, 1992, between the Company and The First
National Bank of Boston (previously filed as Exhibit
4.1 to Current Report on Form 8-K dated February 27,
1992).
4.7* Form of Indenture between the Company and the First
National Bank of Boston, as Trustee, including Form of
Notes (previously filed as Exhibit 4.6 to the Company's
Registration Statement on Form S-3 declared effective May
25, 1995).
4.8 Integrated Device Technology, Inc. 1994 Stock Option Plan,
as amended through May 3, 1995.
5.1 Opinion of Fenwick & West regarding legality of securities
to be offered.
23.1 Consent of Price Waterhouse LLP, Independent Accountants.
23.2 Consent of Fenwick & West (included in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
- --------------
* The exhibits were previously filed with the Commission as indicated and are
incorporated herein by reference.
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EXHIBIT 4.3
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
INTEGRATED DEVICE TECHNOLOGY, INC.
Integrated Device Technology, Inc., a Delaware corporation, does
hereby certify that the following amendment to the corporation's Restated
Certificate of Incorporation has been duly adopted in accordance with the
provisions of Section 242 of the Delaware General Corporation Law:
Article 4, Section 4.1 of the Restated Certificate of
Incorporation is hereby amended in its entirety to read as follows:
Section 4.1 This Corporation is authorized to issue
two classes of shares designated "Common Stock" and "Preferred Stock."
The total number of shares which this corporation shall have authority
to issue is Two Hundred Ten Million (210,000,000), of which Two Hundred
Million (200,000,000) shall be Common Stock with a par value of $.001
per share and Ten Million (10,000,000) shall be Preferred Stock with a
par value of $.001 per share.
IN WITNESS WHEREOF, said corporation has caused this Certificate
of Amendment to be signed and attested by its duly authorized officers this 24th
day of August, 1995.
INTEGRATED DEVICE TECHNOLOGY, INC.
By: /s/ Leonard C. Perha
----------------------------
Leonard C. Perham, President
ATTEST:
/s/ Jack Menache
- ----------------------------
Jack Menache, Secretary
- 1 -
INTEGRATED DEVICE TECHNOLOGY, INC.
1994 STOCK OPTION PLAN
As Adopted May 3, 1994
and as amended through May 3, 1995
1. PURPOSE. The purpose of the Plan is to provide incentives to
attract, retain and motivate eligible persons whose present and potential
contributions are important to the success of the Company, its Parent,
Subsidiaries and Affiliates, by offering them an opportunity to participate in
the Company's future performance through awards of stock options. Capitalized
terms not defined in the text are defined in Section 19.
2. SHARES SUBJECT TO THE PLAN.
2.1 Number of Shares Available. Subject to Sections 2.2
and 14, the total number of Shares reserved and available for grant and issuance
pursuant to Awards under the Plan shall be Three Million Six Hundred Twenty-Five
Thousand (3,625,000) Shares. Shares issuable upon exercise of stock options
granted pursuant to the Company's 1985 Incentive and Nonqualified Stock Option
Plan (the "Prior Plan") that expire or become unexercisable for any reason
without having been exercised in full, shall no longer be available for exercise
under the Prior Plan, but shall be available for distribution under this Plan
(not to exceed Five Million (5,000,000) Shares). Subject to Sections 2.2 and 14,
Shares shall again be available for grant and issuance in connection with future
Awards under the Plan if such Shares cease to be subject to an Award.
2.2 Adjustment of Shares. In the event that the number
of outstanding Shares is changed by a stock dividend, recapitalization, stock
split, reverse stock split, subdivision, combination, reclassification or
similar change in the capital structure of the Company without consideration, or
by a Corporate Transaction (as defined in Section 14.1) then, unless such change
results in the termination of all outstanding Awards as a result of the
Corporate Transaction, (a) the number of Shares reserved for issuance under the
Plan and (b) the Exercise Prices of and number of Shares subject to outstanding
Awards shall be proportionately c adjusted, subject to any required action by
the Board or the stockholders of the Company and compliance with applicable
securities laws; provided, however, that fractions of a Share shall not be
issued but shall either be paid in cash at Fair Market Value or shall be rounded
up to the nearest Share, as determined by the Committee; and provided, further,
that the Exercise Price of any Award may not be decreased to below the par value
of the Shares.
<PAGE>
3. ELIGIBILITY. ISOs (as defined in Section 5 below) may be
granted only to employees (including officers and directors who are also
employees) of the Company or of a Parent or Subsidiary of the Company. NQSOs (as
defined in Section 5 below) may be granted to employees, officers, directors,
consultants, independent contractors and advisors of the Company or any Parent,
Subsidiary or Affiliate of the Company; provided such consultants, contractors
and advisors render bona fide services not in connection with the offer and sale
of securities in a capital-raising transaction. A person may be granted more
than one Award under the Plan. Each person is eligible to receive up to an
aggregate maximum of One Million (1,000,000) Shares per fiscal year.
4. ADMINISTRATION.
4.1 Committee Authority. The Plan shall be administered
by the Committee. Subject to the general purposes, terms and conditions of the
Plan, the Committee shall have full power to implement and carry out the Plan.
The Committee shall have the authority to:
(a) construe and interpret the Plan, any Stock Option
Agreement and any other agreement or document executed
pursuant to the Plan;
(b) prescribe, amend and rescind rules and regulations
relating to the Plan;
(c) select persons to receive Awards;
(d) determine the form and terms of Awards;
(e) determine the number of Shares subject to Awards;
(f) determine whether Awards will be granted in replacement
of, or as alternatives to, other Awards under the Plan
or any other incentive or compensation plan of the
Company or any Parent, Subsidiary or Affiliate of the
Company;
(g) grant waivers of Plan or Award conditions;
(h) determine the vesting and exercisability of Awards;
(i) correct any defect, supply any omission, or reconcile
any inconsistency in the Plan, any Award or any Stock
Option Agreement;
(j) determine the disposition of Awards in the event of a
Participant's divorce or dissolution of marriage; and
(k) make all other determinations necessary or advisable
for the administration of the Plan.
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<PAGE>
4.2 Committee Discretion. Any determination made by the
Committee with respect to any Award shall be made in its sole discretion at the
time of grant of the Award or, unless in contravention of any express term of
the Plan or Award, at any later time, and such determination shall be final and
binding on the Company and all persons having an interest in any Award under the
Plan. The Committee may delegate to one or more officers of the Company the
authority to grant an Award under the Plan to Participants who are not Insiders
of the Company.
4.3 Exchange Act Requirements. If two or more members
of the Board are Outside Directors, the Committee shall be comprised of at least
two members of the Board, all of whom are Outside Directors and Disinterested
Persons. The Company will take appropriate steps to comply with the
disinterested director requirements of Section 16(b) of the Exchange Act,
including but not limited to, the appointment by the Board of a Committee
consisting of not less than two persons (who are members of the Board), each of
whom is a Disinterested Person. It is the intent of the Company that the Plan
and Awards hereunder satisfy and be interpreted in a manner, that, in the case
of Participants who are or may be Insiders, satisfies the applicable
requirements of Rule 16b-3 (or its successor) of the Exchange Act. If any
provision of the Plan or of any Award would otherwise conflict with the intent
expressed in this Section 4.3, that provision to the extent possible shall be
interpreted and deemed amended so as to avoid such conflict.
5. STOCK OPTIONS. The Committee may grant Awards to eligible
persons and shall determine whether such Awards shall be Incentive Stock Options
within the meaning of the Code ("ISOs") or Nonqualified Stock Options ("NQSOs"),
the number of Shares subject to the Award, the Exercise Price of the Award, the
period during which the Award may be exercised, and all other terms and
conditions of the Award, subject to the following:
5.1 Form of Option Grant. Each Award granted under the
Plan shall be evidenced by an Stock Option Agreement which shall expressly
identify the Award as an ISO or NQSO, and be in such form and contain such
provisions (which need not be the same for each Participant) as the Committee
shall from time to time approve, and which shall comply with and be subject to
the terms and conditions of the Plan.
5.2 Date of Grant. The date of grant of an Award shall
be the date on which the Committee makes the determination to grant such Award,
unless otherwise specified by the Committee. The Stock Option Agreement and a
copy of the Plan will be delivered to the Participant within a reasonable time
after the granting of the Award.
5.3 Exercise Period. Awards shall be exercisable within
the times or upon the events determined by the Committee as set forth in the
Stock Option Agreement; provided, however, that no Award shall be exercisable
after the expiration of ten (10) years from the date the Award is granted; and
provided further that no ISO granted to a person who directly or by attribution
owns more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Parent or Subsidiary of the Company ("Ten
Percent
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<PAGE>
Stockholder") shall be exercisable after the expiration of five (5) years from
the date the Award is granted. The Committee also may provide for the exercise
of Awards to become exercisable at one time or from time to time, periodically
or otherwise, in such number or percentage as the Committee determines.
5.4 Exercise Price. The Exercise Price shall be
determined by the Committee when the Award is granted and shall be not less than
100% of the Fair Market Value of the Shares on the date of grant; provided, that
the Exercise Price of any ISO granted to a Ten Percent Stockholder shall not be
less than 110% of the Fair Market Value of the Shares on the date of grant.
Payment for the Shares purchased may be made in accordance with Section 6 of the
Plan.
5.5 Method of Exercise. Awards may be exercised only by
delivery to the Company of a written exercise agreement (the "Exercise
Agreement") in a form approved by the Committee (which need not be the same for
each Participant), stating the number of Shares being purchased, the
restrictions imposed on the Shares, if any, and such representations and
agreements regarding Participant's investment intent and access to information
and other matters, if any, as may be required or desirable by the Company to
comply with applicable securities laws, together with payment in full of the
Exercise Price for the number of Shares being purchased.
5.6 Termination. Notwithstanding the exercise periods
set forth in the Stock Option Agreement, exercise of an Award shall always be
subject to the following:
(a) If the Participant is Terminated for any reason except
death or Disability, then Participant may exercise such
Participant's Awards only to the extent that such
Awards would have been exercisable upon the Termination
Date no later than three (3) months after the
Termination Date (or such longer time period not
exceeding five years as may be determined by the
Committee), but in any event, no later than the
expiration date of the Awards.
(b) If the Participant is terminated because of death or
Disability (or the Participant dies within three months
of such termination), then Participant's Awards would
have been exercisable by Participant on the Termination
Date and must be exercised by Participant (or
Participant's legal representative or authorized
assignee) no later than (i) twelve (12) months after
the Termination Date in the case of disability or (ii)
eighteen (18) months after the Termination Date in the
case of death (or such longer time period not exceeding
five years as may be determined by the Committee), but
in any event no later than the expiration date of the
Awards.
5.7 Limitations on Exercise. The Committee may specify
a reasonable minimum number of Shares that may be purchased on any exercise of
an Award; provided that
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<PAGE>
such minimum number will not prevent Participant from exercising the Award for
the full number of Shares for which it is then exercisable.
5.8 Limitations on ISOs. The aggregate Fair Market
Value (determined as of the date of grant) of Shares with respect to which ISOs
are exercisable for the first time by a Participant during any calendar year
(under the Plan or under any other incentive stock option plan of the Company or
any Affiliate, Parent or Subsidiary of the Company) shall not exceed $100,000.
If the Fair Market Value of Shares on the date of grant with respect to which
ISOs are exercisable for the first time by a Participant during any calendar
year exceeds $100,000, the Awards for the first $100,000 worth of Shares to
become exercisable in such calendar year shall be ISOs and the Awards for the
amount in excess of $100,000 that become exercisable in that calendar year shall
be NQSOs. In the event that the Code or the regulations promulgated thereunder
are amended after the Effective Date of the Plan to provide for a different
limit on the Fair Market Value of Shares permitted to be subject to ISOs, such
different limit shall be automatically incorporated herein and shall apply to
any Awards granted after the effective date of such amendment.
5.9 Modification, Extension or Renewal. The Committee
may modify, extend or renew outstanding Awards and authorize the grant of new
Awards in substitution therefor; provided that any such action may not, without
the written consent of Participant, impair any of Participant's rights under any
Award previously granted. Any outstanding ISO that is modified, extended,
renewed or otherwise altered shall be treated in accordance with Section 424(h)
of the Code. The Committee may reduce the Exercise Price of outstanding Awards
without the consent of Participants affected by a written notice to them;
provided, however, that the Exercise Price may not be reduced below the minimum
Exercise Price that would be permitted under Section 5.4 of the Plan for Awards
granted on the date the action is taken to reduce the Exercise Price; and
provided, further, that the Exercise Price shall not be reduced below the par
value of the Shares, if any.
5.10 No Disqualification. Notwithstanding any other
provision in the Plan, no term of the Plan relating to ISOs shall be
interpreted, amended or altered, nor shall any discretion or authority granted
under the Plan be exercised, so as to disqualify the Plan under Section 422 of
the Code or, without the consent of the Participant affected, to disqualify any
ISO under Section 422 of the Code.
6. PAYMENT FOR SHARE PURCHASES. Payment for Shares purchased
pursuant to the Plan may be made in cash (by check) or, where expressly approved
for the Participant by the Committee and where permitted by law:
(a) by surrender of Shares that either: (1) have been owned
by Participant for more than six (6) months and have
been paid for within the meaning of SEC Rule 144 (and,
if such shares were purchased from the Company by use
of a promissory note, such note has been fully paid
with respect to such Shares); or (2) were obtained by
Participant in the public market;
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<PAGE>
(b) by waiver of compensation due or accrued to Participant
for services rendered;
(c) provided that a public market for the Company's stock
exists:
(1) through a "same day sale" commitment from
Participant and a broker-dealer that is a
member of the National Association of
Securities Dealers (a "NASD Dealer") whereby
the Participant irrevocably elects to exercise
the Award and to sell a portion of the Shares
so purchased in order to pay for the Exercise
Price, and whereby the NASD Dealer irrevocably
commits upon receipt of such Shares to forward
the Exercise Price directly to the Company; or
(2) through a "margin" commitment from Participant
and a NASD Dealer whereby Participant
irrevocably elects to exercise the Award and
to pledge the Shares so purchased to the NASD
Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the
Exercise Price, and whereby the NASD Dealer
irrevocably commits upon receipt of such
Shares to forward the exercise price directly
to the Company; or
(d) by any combination of the foregoing.
7. WITHHOLDING TAXES.
7.1 Withholding Generally. Whenever Shares are to be
issued in satisfaction of Awards granted under the Plan, the Company may require
the Participant to remit to the Company an amount sufficient to satisfy federal,
state and local withholding tax requirements prior to the delivery of any
certificate or certificates for such Shares. Whenever, under the Plan, payments
in satisfaction of Awards are to be made in cash, such payment shall be net of
an amount sufficient to satisfy federal, state, and local withholding tax
requirements.
7.2 Stock Withholding. When, under applicable tax laws,
a Participant incurs tax liability in connection with the exercise of any Award
that is subject to tax withholding and the Participant is obligated to pay the
Company the amount required to be withheld, the Committee may allow the
Participant to satisfy the minimum withholding tax obligation by electing to
have the Company withhold from the Shares to be issued that number of Shares
having a Fair Market Value equal to the minimum amount required to be withheld,
determined on the date that the amount of tax to be withheld is to be determined
(the "Tax Date"). All elections by a Participant to have Shares withheld for
this purpose shall be made in writing in a form acceptable to the Committee and
shall be subject to the following restrictions:
(a) the election must be made on or prior to the applicable
Tax Date;
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<PAGE>
(b) once made, then except as provided below, the election
shall be irrevocable as to the particular Shares as to
which the election is made;
(c) all elections shall be subject to the consent or
disapproval of the Committee;
(d) if the Participant is an Insider and if the Company is
subject to Section 16(b) of the Exchange Act: (1) the
election may not be made within six (6) months of the
date of grant of the Award, except as otherwise
permitted by SEC Rule 16b-3(e) under the Exchange Act,
and (2) either (A) the election to use stock
withholding must be irrevocably made at least six (6)
months prior to the Tax Date (although such election
may be revoked at any time at least six (6) months
prior to the Tax Date) or (B) the exercise of the Award
or election to use stock withholding must be made in
the ten (10) day period beginning on the third day
following the release of the Company's quarterly or
annual summary statement of sales or earnings; and
(e) in the event that the Tax Date is deferred until six
(6) months after the delivery of Shares under Section
83(b) of the Code, the Participant shall receive the
full number of Shares with respect to which the
exercise occurs, but such Participant shall be
unconditionally obligated to tender back to the Company
the proper number of Shares on the Tax Date.
8. PRIVILEGES OF STOCK OWNERSHIP.
8.1 Voting and Dividends. No Participant shall have any
of the rights of a stockholder with respect to any Shares until the Shares are
issued to the Participant. After Shares are issued to the Participant, the
Participant shall be a stockholder and have all the rights of a stockholder with
respect to such Shares, including the right to vote and receive all dividends or
other distributions made or paid with respect to such Shares.
8.2 Financial Statements. The Company shall provide
financial statements to each Participant prior to such Participant's purchase of
Shares under the Plan, and to each Participant annually during the period such
Participant has Awards outstanding; provided, however, the Company shall not be
required to provide such financial statements to Participants whose services in
connection with the Company assure them access to equivalent information.
9. TRANSFERABILITY. Subject to Section 4.1(j), Awards granted
under the Plan, and any interest therein, shall not: (a) be transferable or
assignable by the Participant, (b) be made subject to execution, attachment or
similar process, otherwise than by will or by the laws of descent and
distribution or as consistent with the specific Plan and Stock Option Agreement
provisions relating thereto or (c) during the lifetime of the Participant, be
exercisable by anyone other than the Participant, and any elections with respect
to an Award, may be made only by the Participant.
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10. CERTIFICATES. All certificates for Shares or other
securities delivered under the Plan shall be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem necessary or
advisable, including restrictions under any applicable federal, state or foreign
securities law, or any rules, regulations and other requirements of the SEC or
any stock exchange or automated quotation system upon which the Shares may be
listed.
11. SECURITIES LAW AND OTHER REGULATORY COMPLIANCE. An Award
shall not be effective unless such Award is in compliance with all applicable
federal and state securities laws, rules and regulations of any governmental
body, and the requirements of any stock exchange or automated quotation system
upon which the Shares may then be listed, as they are in effect on the date of
grant of the Award and also on the date of exercise or other issuance.
Notwithstanding any other provision in the Plan, the Company shall have no
obligation to issue or deliver certificates for Shares under the Plan prior to
(a) obtaining any approvals from governmental agencies that the Company
determines are necessary or advisable, and/or (b) completion of any registration
or other qualification of such shares under any state or federal law or ruling
of any governmental body that the Company determines to be necessary or
advisable. The Company shall be under no obligation to register the Shares with
the SEC or to effect compliance with the registration, qualification or listing
requirements of any state securities laws, stock exchange or automated quotation
system, and the Company shall have no liability for any inability or failure to
do so.
12. NO OBLIGATION TO EMPLOY. Nothing in the Plan or any Award
granted under the Plan shall confer or be deemed to confer on any Participant
any right to continue in the employ of, or to continue any other relationship
with, the Company or any Parent, Subsidiary or Affiliate of the Company or limit
in any way the right of the Company or any Parent, Subsidiary or Affiliate of
the Company to terminate Participant's employment or other relationship at any
time, with or without cause.
13. EXCHANGE AND BUYOUT OF AWARDS. The Committee may, at any
time or from time to time, authorize the Company, with the consent of the
respective Participants, to issue new Awards in exchange for the surrender and
cancellation of any or all outstanding Awards. The Committee may at any time buy
from a Participant an Award previously granted with payment in cash, Shares or
other consideration, based on such terms and conditions as the Committee and the
Participant shall agree.
14. CORPORATE TRANSACTIONS.
14.1 Corporate Transactions. In the event of a
Corporate Transaction (as defined in this Section 14.1), the exercisability of
each Award shall be automatically accelerated so that each Award shall,
immediately before the specified effective date for the Corporate Transaction,
become fully exercisable with respect to the total number of Shares and may be
exercised for all or any portion of such Shares; provided, that an Award shall
not be accelerated if and to the extent that such Award is, in connection with
the Corporate Transaction, either to be assumed by the successor corporation or
parent thereof or to be replaced with a comparable option to purchase shares of
the capital stock of the successor corporation or parent
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thereof. The determination of comparability shall be made by the Committee, and
the Committee's determination shall be final, binding and conclusive. Upon the
consummation of a Corporate Transaction, all outstanding Awards shall, to the
extent not previously exercised or assumed by the successor corporation or its
parent, terminate and cease to be exercisable.
"Corporate Transaction" means (a) a merger or
acquisition in which the Company is not the surviving entity (except for a
transaction the principal purpose of which is to change the State in which the
Company is incorporated), (b) the sale, transfer or other disposition of all or
substantially all of the assets of the Company or (c) any other corporate
reorganization or business combination that is not approved by the Board and in
which the beneficial ownership of 50% or more of the Company's outstanding
voting stock is transferred.
14.2 Change in Control. Notwithstanding any provision
in Section 14.1 to the contrary, in the event of a Change in Control (as defined
in this Section 14.2), each Award shall automatically accelerate effective
fifteen (15) days following the effective date of the Change in Control, so that
each Award shall become fully exercisable with respect to the total number of
Shares and may be exercised for all or any portion of such Shares. Upon a Change
in Control, all outstanding Awards accelerated shall remain fully exercisable
until the expiration or sooner termination of the Award term specified in the
Stock Option Agreement.
A "Change in Control" shall be deemed to
occur: (a) should a person or related group of persons, other than the Company
or a person that directly or indirectly controls, is controlled by or is under
common control with the Company, becomes the beneficial owner (within the
meaning of Rule 13d-3 of the General Rules and Regulations under the Exchange
Act) of 25% or more of the Company's outstanding voting stock pursuant to a
tender or exchange offer that the Board does not recommend and that the
stockholders of the Company accept; or (b) on the first date within any period
of twenty-four (24) consecutive months or less on which there is effected a
change in the composition of the Board by reason of a contested election such
that a majority of the Board members cease to be comprised of individuals who
either (i) have been members of the Board continuously since the beginning of
such period or (ii) have been elected or nominated for election as Board members
during such period by at least a majority of the Board members described in
clause (i) who were still in office at the time such election or nomination was
approved by the Board.
14.3 Dissolution. In the event of the proposed
dissolution or liquidation of the Company, the Board shall notify the
Participant at least fifteen (15) days prior to such proposed action. To the
extent that Awards have not been previously exercised, such Awards will
terminate immediately prior to the consummation of such proposed action.
14.4 Assumption of Awards by the Company. The Company,
from time to time, also may substitute or assume outstanding awards granted by
another company, whether in connection with an acquisition of such other company
or otherwise, by either (a) granting an Award under the Plan in substitution of
such other company's award, or (b) assuming such award as if it had been granted
under the Plan if the terms of such assumed award could be applied to an Award
granted under the Plan. Such substitution or assumption shall be permissible if
the holder
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of the substituted or assumed award would have been eligible to be granted an
Award under the Plan if the other company had applied the rules of the Plan to
such grant. In the event the Company assumes an award granted by another
company, the terms and conditions of such award shall remain unchanged (except
that the exercise price and the number and nature of Shares issuable upon
exercise of any such option will be adjusted appropriately pursuant to Section
424(a) of the Code). In the event the Company elects to grant a new Award rather
than assuming an existing option, such new Award may be granted with a similarly
adjusted Exercise Price.
15. ADOPTION AND STOCKHOLDER APPROVAL. The Plan shall become
effective on the date that it is adopted by the Board (the "Effective Date").
The Plan shall be approved by the stockholders of the Company (excluding Shares
issued pursuant to this Plan), consistent with applicable laws, within twelve
months before or after the Effective Date. Upon the Effective Date, the Board
may grant Awards pursuant to the Plan; provided, however, that: (a) no Award may
be exercised prior to initial stockholder approval of the Plan and (b) no Award
granted pursuant to an increase in the number of Shares approved by the Board
shall be exercised prior to the time such increase has been approved by the
stockholders of the Company. For so long as and whenever the Company is subject
to Section 16(b) of the Exchange Act, the Company will comply with the
requirements of Rule 16b-3 (or its successor), as amended, with respect to
stockholder approval.
16. TERM OF PLAN. The Plan will terminate ten (10) years from
the Effective Date or, if earlier, the date of stockholder approval.
17. AMENDMENT OR TERMINATION OF PLAN. The Board may at any time
terminate or amend the Plan in any respect, including without limitation
amendment of any form of Stock Option Agreement or instrument to be executed
pursuant to the Plan; provided, however, that the Board shall not, without the
approval of the stockholders of the Company, amend the Plan in any manner that
requires such stockholder approval pursuant to the Code or the regulations
promulgated thereunder as such provisions apply to ISO plans or pursuant to the
Exchange Act or Rule 16b-3 (or its successor), as amended, thereunder; provided,
further, that no amendment may be made to outstanding Awards without the consent
of the Participant.
18. NONEXCLUSIVITY OF THE PLAN. Neither the adoption of the Plan
by the Board, the submission of the Plan to the stockholders of the Company for
approval, nor any provision of the Plan shall be construed as creating any
limitations on the power of the Board to adopt such additional compensation
arrangements as it may deem desirable, including, without limitation, the
granting of stock options otherwise than under the Plan, and such arrangements
may be either generally applicable or applicable only in specific cases.
19. DEFINITIONS. As used in the Plan, the following terms
shall have the following meanings:
"Affiliate" means any corporation that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with the Company where "control" (including the terms
"controlled by" and "under common control with") means
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the possession, direct or indirect, of the power to cause the direction of the
management and policies of the corporation, whether through the ownership of
voting securities, by contract or otherwise. "Award" means an award of an option
to purchase Shares.
"Stock Option Agreement" means, with respect to each
Award, the signed written agreement between the Company and the Participant
setting forth the terms and conditions of the Award.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Committee" means the committee appointed by the Board
to administer the Plan, or if no committee is appointed, the Board.
"Company" means Integrated Device Technology, Inc., a
corporation organized under the laws of the State of Delaware, or any successor
corporation.
"Disability" means a disability, whether temporary or
permanent, partial or total, within the meaning of Section 22(e)(3) of the Code,
as determined by the Committee.
"Disinterested Person" means a director who has not,
during the period that person is a member of the Committee and for one year
prior to service as a member of the Committee, been granted or awarded equity
securities pursuant to the Plan or any other plan of the Company or any Parent,
Subsidiary or Affiliate of the Company, except in accordance with the
requirements set forth in Rules as promulgated by the SEC under Section 16(b) of
the Exchange Act, as such Rules are amended from time to time and as interpreted
by the SEC.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exercise Price" means the price at which a holder of
an Award may purchase the Shares issuable upon exercise of the Award.
"Fair Market Value" means the value of a share of the
Company's Common Stock determined as follows:
(a) if such Common Stock is then quoted on the Nasdaq
National Market the closing price on the Nasdaq
National Market System on the trading day immediately
preceeding the date on which Fair Market Value is
determined, or, if no such reported sale takes place on
such date, the closing price on the next preceding
trading date on which a reported sale occurred;
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(b) if such Common Stock is publicly traded and is then
listed on a national securities exchange, the closing
price or, if no reported sale takes place on such date,
the closing price on the next preceding trading day on
which a reported sale occurred;
(c) if such Common Stock is publicly traded but is not
quoted on the Nasdaq National Market nor listed or
admitted to trading on a national securities exchange,
the average of the closing bid and asked prices on such
date, as reported by The Wall Street Journal, for the
over-the-counter market; or
(d) if none of the foregoing is applicable, by the Board in
good faith.
"Insider" means an officer or director of the Company
or any other person whose transactions in the Company's Common Stock are subject
to Section 16 of the Exchange Act.
"Outside Director" means any outside director as
defined in Section 162(m) of the Code and the regulations issued thereunder.
"Parent" means any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company, if at the time of
the granting of an Award under the Plan, each of such corporations other than
the Company owns stock possessing 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
"Participant" means a person who receives an Award
under the Plan.
"Plan" means this Integrated Device Technology, Inc.
1994 Stock Option Plan, as amended from time-to-time.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shares" means shares of the Company's Common Stock
$0.001 par value, reserved for issuance under the Plan, as adjusted pursuant to
Sections 2 and 14, and any successor security.
"Subsidiary" means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company if, at
the time of granting of the Award, each of the corporations other than the last
corporation in the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
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"Termination" or "Terminated" means, for purposes of
the Plan with respect to a Participant, that the Participant has ceased to
provide services as an employee, director, consultant, independent contractor or
adviser, to the Company or a Parent, Subsidiary or Affiliate of the Company,
except in the case of sick leave, military leave, or any other leave of absence
approved by the Committee; provided, that such leave is for a period of not more
than ninety (90) days, or reinstatement upon the expiration of such leave is
guaranteed by contract or statute. The Committee shall have sole discretion to
determine whether a Participant has ceased to provide services and the effective
date on which the Participant ceased to provide services (the "Termination
Date").
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EXHIBIT 5.1
September 29, 1995
Integrated Device Technology, Inc.
2975 Stender Way
Santa Clara, CA 95054
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 on or about October 2, 1995 in connection with the
registration under the Securities Act of 1933, as amended, of 4,000,000 shares
of your Common Stock (the "Common Stock") to be sold by you pursuant to stock
options to be granted under your 1994 Stock Option Plan, as amended (the "1994
Plan").
As your counsel, we have examined the proceedings taken by you in
connection with the adoption and amendment of the 1994 Plan.
It is our opinion that the 4,000,000 shares of Common Stock that may be
issued and sold by you pursuant to the stock options to be granted under the
1994 Plan, when issued and sold in the manner referred to in the relevant
Prospectus associated with the Registration Statement, the 1994 Plan and
accompanying stock options, will be legally 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 all references to us, if any, in the
Registration Statement and any amendments thereto.
Very truly yours,
Fenwick & West
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 April 21, 1995 appearing on page __ of
the Annual Report of Integrated Device Technology, Inc. on Form 10-K for the
year ended April 2, 1995.
Price Waterhouse LLP
San Jose, California
September __, 1995
