As filed with the Securities and Exchange Commission on February 16, 1996
Registration No. 33- ______
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ILC TECHNOLOGY, INC.
(Exact name of issuer as specified in its charter)
California 94-1655721
(State of Incorporation) (I.R.S. Employer Identification No.)
399 Java Drive
Sunnyvale, California 94089
(Address of Principal Executive Office Including Zip Code)
ILC TECHNOLOGY, INC.
1992 STOCK OPTION PLAN
(Full title of the plan)
Henry C. Baumgartner
President and Chief Executive Officer
ILC Technology, Inc.
399 Java Drive
Sunnyvale, California 94089
(408) 745-7900
(Name, address and telephone number of agent for service)
Copy to:
KATHERINE T. TALLMAN
FENWICK & WEST
Two Palo Alto Square
Palo Alto, CA 94306
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Offering
Securities to to be Price per Amount of
Be Registered Registered Share (1) Price Registration Fee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Common Stock 200,000 $ 9.50 $1,900,000 $ 655.17
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933 and
based upon an average of the high and low prices reported on the Nasdaq National
Market on February 12, 1996.
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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 year ended September
30, 1995;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1995;
3. The Company's definitive Proxy Statement dated January 2, 1996,
in connection with the Annual Meeting of Shareholders of the
Company held on February 14, 1996;
4. The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A filed on November 25, 1983, as
amended by Form 8 filed February 3, 1987; and
5. The description of the Company's Rights which is contained in a
Registration Statement on Form 8-A filed on October 2, 1989.
All documents filed by the Company pursuant to Sections 13(a), 13(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 hereby 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.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The Company has adopted provisions in its Restated Articles of
Incorporation that limit the liability of its directors. As permitted by the
California General Corporation Law, directors will not be liable to the Company
for monetary damages arising from a breach of their fiduciary duty as directors,
in certain circumstances. Such limitation does not affect liability for any
breach of a director's duty to the Company or its shareholders (i) with respect
to approval by a director of any transaction from which he derives an improper
personal benefit, (ii) with respect to acts or omissions that involve an absence
of good faith, that a director believes to be contrary to the best interests of
the Company or its shareholders, that involve intentional misconduct or a
knowing and culpable violation of law, that constitute an unexcused pattern of
inattention that amounts to an abdication of a director's duty to the Company or
its shareholders, or that show a reckless disregard for a director's duty to the
Company or its shareholders in circumstances in which a director was, or should
have been, aware, in the ordinary course of performing his duties, of a risk of
serious injury to the Company or its shareholders, or (iii) based on
transactions between the Company and its directors or another corporation with
interrelated directors or on improper distributions, loans or guarantees under
applicable sections of the California General Corporation Law. Such limitation
of liability also does not affect the availability of equitable remedies such as
injunctive relief or rescission.
The Company's Bylaws provide that the Company shall indemnify its directors
and executive officers to the full extent permitted by California law, including
circumstances in which indemnification is otherwise
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discretionary under California law. The Company has entered into indemnification
agreements with each of its executive officers and directors, which may require
the Company, among other things, to indemnify its directors and executive
officers against certain liabilities that may arise by reason of their status or
service as directors or executive officers (other than liabilities arising from
willful misconduct of a culpable nature), to advance their expenses incurred as
a result of any proceeding against them as to which they could be indemnified,
and to obtain directors' and officers' insurance if available on reasonable
terms. In addition, the Company has director and officer liability insurance.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or 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 Act and is therefore unenforceable.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1* Restated Articles of Incorporation filed March 8, 1991
(previously filed as Exhibit 3.1 to Annual Report on Form 10-K
for the fiscal year ended September 28, 1991, File No. 0-11360)
4.2* Amended and Restated Bylaws as of February 8, 1989 (previously
filed as Exhibit 3.2 to Annual Report on Form 10-K for the fiscal
year ended September 28, 1991, File No. 0-11360)
4.3* Rights Agreement between the Company and Security Pacific
National Bank dated as of September 29, 1989 (previously filed as
Exhibit 2.1 to Current Report on Form 8-K dated September 19,
1989)
5.1 Opinion of Fenwick & West
21.1* Subsidiaries of the Company, all of which are eligible to
participate in the Plan (previously filed as Exhibit 21.1 to
Annual Report on Form 10-K for the fiscal year ended October 1,
1994, File No. 0-11360)
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (See page II-6)
24.1 Power of Attorney (See page II-4)
___________________________
* These exhibits were previously filed with the Commission as
indicated and are incorporated herein by reference.
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:
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(a) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(b) 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 thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(c) 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)(a) and (1)(b) do not apply if 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 Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, 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.
(4) That, for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section 13
(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
(5) To deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under
the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X are not
set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
(6) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the 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,
ILC Technology, Inc., 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 Sunnyvale, State of California, on February 14,
1996.
ILC TECHNOLOGY, INC.
By: /s/ Henry C. Baumgartner
____________________________
Henry C. Baumgartner, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Henry C.
Baumgartner and Ronald E. Fredianelli and each of them, his true and lawful
attorneys-in-fact and agents, each with the power of substitution, 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 to said
attorneys- in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or either of them, or their or his substitute or substitutes, may
lawfully 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 by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ------ ----
/s/ Henry C. Baumgartner President, Chief Executive February 14, 1996
________________________ Officer and Director
Henry C. Baumgartner (Principal Executive
Officer and Director)
/s/ Ronald E. Fredianelli Chief Financial Officer February 14, 1996
_________________________ (Principal Financial and
Ronald E. Fredianelli Accounting Officer)
/s/ Wirt D. Walker, III Chairman of the Board February 14, 1996
_______________________ (Director)
Wirt D. Walker, III
/s/ Harrison A. Augur Director February 14, 1996
_____________________
Harrison A. Augur
/s/ Arthur L. Schawlow Director February 14, 1996
______________________
Arthur L. Schawlow
/s/ Richard D. Capra Director February 14, 1996
____________________
Richard D. Capra
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EXHIBIT 5.1
February 15, 1996
ILC Technology, Inc.
399 Java Drive
Sunnyvale, CA 94089
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 February 15, 1996 in connection with the
registration under the Securities Act of 1933, as amended, of 200,000 shares of
your Common Stock (the "Common Stock") to be sold by you pursuant to your 1992
Stock Option Plan, as amended (the "Plan").
As your counsel, we have examined the proceedings taken by you in
connection with the adoption and amendment of the Plan.
It is our opinion that the 200,000 shares of Common Stock that may be
issued and sold by you pursuant to the Plan, when issued and sold in accordance
with the terms of the Plan in the manner referred to in the relevant Prospectus
associated with the Registration Statement and the Plan, 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 which have been approved by
us.
Very truly yours,
Katherine T. Tallman
Fenwick & West
KTT/srr
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399367.1
CONSENT OF COUNSEL
The consent of Fenwick & West is contained in their opinion filed as
Exhibit 5.1 to the Registration Statement.
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated November 3, 1995
included in ILC Technology, Inc.'s Form 10-K for the year ended September 30,
1995.
ARTHUR ANDERSEN LLP
San Jose, California
February 20, 1996
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INDEX TO EXHIBITS
Exhibit Exhibit
Number ________
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4.1* Restated Articles of Incorporation filed March 8, 1991 (previously
filed as Exhibit 3.1 to Annual Report on Form 10-K for the fiscal year
ended September 28, 1991, File No. 0-11360)
4.2* Amended and Restated Bylaws as of February 8, 1989 (previously
filed as Exhibit 3.2 to Annual Report on Form 10-K for the fiscal year
ended September 28, 1991, File No. 0-11360)
4.3* Rights Agreement between the Company and Security Pacific National
Bank dated as of September 29, 1989 (previously filed as Exhibit 2.1
to Current Report on Form 8-K dated September 19, 1989)
5.1 Opinion of Fenwick & West
21.1* Subsidiaries of the Company, all of which are eligible to participate
in the Plan (previously filed as Exhibit 21.1 to Annual Report on Form
10-K for the fiscal year ended October 1, 1994, File No. 0-11360)
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (See page II-6)
24.1 Power of Attorney (See page II-4)
_____________________________
* These exhibits were previously filed with the Commission as indicated and are
incorporated herein by reference.
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