As filed with the Securities and Exchange Commission
on March ___, 1996 Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZITEL CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-2566313
(State of Incorporation) (I.R.S. Employer Identification No.)
47211 Bayside Parkway
Fremont, California 94538
(510) 440-9600
(Address and telephone number of principal executive offices)
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
Henry C. Harris
Vice President, Finance and Administration and Secretary
Zitel Corporation
47211 Bayside Parkway
Fremont, California 94538
(510) 440-9600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Michael R. Jacobson, Esq.
Cooley Godward Castro Huddleson & Tatum
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
(415) 843-5000
Total Number of Pages: 10
Exhibit Index at Page: 8
<PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES OFFERING PRICE PER AGGREGATE OFFERING
TO BE REGISTERED AMOUNT TO BE SHARE (1) PRICE (1) AMOUNT OF
REGISTERED REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (no
par value)
100,000 $11.75 - $12.8125 $1,260,812.62 $434.76
===================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) based upon (i)
$11.75 - $12.4375, the exercise prices of 27,000 options outstanding
under the 1995 Non-Employee Directors' Stock Option Plan and (ii)
12.8125, the average of the bid and asked prices of Registrant's Common
Stock on March 25, 1996 as reported on the NASDAQ National Market
System.
</FN>
</TABLE>
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Zitel Corporation (the "Company") with
the Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
a registration statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
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 offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the California Corporations Code, the Company's Restated Articles
of Incorporation, the Company's Bylaws and under indemnification contracts
between the Company and certain officers and directors, the Company has broad
powers to indemnify directors and officers against liabilities which they may
incur in such capacities, including liability arising under the Securities Act.
The Company has obtained insurance to indemnify its directors and officers from
certain liabilities, including liability arising under the Securities Act. The
Underwriting Agreement under which shares of Common Stock were sold in the
Company's initial public offering provide for indemnification by the
underwriters of the Company, its directors, and its officers for certain
liabilities arising under the Securities Act or otherwise.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is
contained in Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(A) 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. 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 Commission pursuant to Rule 424(b) (ss. 230.424(b) of
this chapter) if, in the aggregate, the changes in volume and price represent no
more than a 20% 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)(i) and (a)(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 issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(B) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(C) 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.
2. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE>
3. 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.
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Fremont, State of
California, on March 26, 1996.
ZITEL COPORATION
By /s/ Henry C. Harris
-----------------------------------
Henry C. Harris
Vice President, Finance and
Administration and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jack H. King and Henry C. Harris, and
each or any one of them, his true and lawful attorney-in-fact and agent, 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 all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
<PAGE>
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/ Jack H. King President, Chief Executive Officer March 26, 1996
- ------------------------ and Director (Principal Executive
Jack H. King Officer)
/s/ Henry C. Harris Vice President, Finance and March 26, 1996
- ------------------------ Administration and Secretary
Henry C. Harris (Principal Financial and
Accounting Officer)
/s/ William R. Lonergan Director March 26, 1996
- ------------------------
William R. Lonergan
/s/Catherine P. Goodrich Director March 26, 1996
- ------------------------
Catherine P. Goodrich
/s/ William M. Regitz Director March 26, 1996
- ------------------------
William M. Regitz
/s/ Robert H. Welch Director March 26, 1996
- ------------------------
Robert H. Welch
<PAGE>
<TABLE>
EXHIBIT INDEX
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION SEQUENTIAL PAGE NUMBER
<S> <C> <C>
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum. 9
23.1 Consent of Coopers & Lybrand L.L.P. 10
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in 9
Exhibit 5.1 to this Registration Statement.
24 Power of Attorney is contained on the signature pages. 6
</TABLE>
EXHIBIT 5.1
March 26, 1996
Zitel Corporation MICHAEL R. JACOBSON
47211 Bayside Parkway Direct: (415) 843-5031
Fremont, California 94538 Internet: [email protected]
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Zitel Corporation (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 100,000 shares of the Company's Common
Stock, no par value, (the "Shares") pursuant to its 1995 Non-Employee Directors'
Stock Option Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Articles of Incorporation and By-laws, as amended, and
such other documents, records, certificates, memoranda and other instruments as
we deem necessary as a basis for this opinion. We have assumed the genuineness
and authenticity of all documents submitted to us as originals, the conformity
to originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
By: /s/Michael R. Jacobson
--------------------------------
Michael R. Jacobson
MRJ:wp
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Zitel Corporation on Form S-8 of our report dated October 25, 1995, except for
the note entitled "Subsequent Event" to which the date is November 17, 1995, on
our audits of the consolidated financial statements and financial statement
schedule of Zitel Corporation as of September 30, 1995 and 1994, and for the
years ended September 30, 1995, and 1993, which report is included in the Annual
Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
San Jose, California
March 26, 1996
