<PAGE> 1
As filed with the Securities and Exchange Commission on October 29, 1999
Registration No. 333- ___
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------------------
DALLAS SEMICONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-1935715
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4401 SOUTH BELTWOOD PARKWAY
DALLAS, TEXAS 75244-3292
(972) 371-4000
(Address, including ZIP code, and telephone number,
including area code, of registrant's principal executive offices)
-----------------------
DALLAS SEMICONDUCTOR CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
-----------------------
C.V. PROTHRO Copy to:
CHAIRMAN OF THE BOARD, M.D. SAMPELS, ESQ.
PRESIDENT & CHIEF EXECUTIVE OFFICER JENKENS & GILCHRIST, P.C.
DALLAS SEMICONDUCTOR CORPORATION 1445 ROSS AVENUE, SUITE 3200
4401 SOUTH BELTWOOD PARKWAY DALLAS, TEXAS 75202-2799
DALLAS, TEXAS 75244-3292 (214) 855-4500
(Name and address of agent for service)
(972) 371-4000
(Telephone number, including
area code, of agent for service)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1)(2) PER SHARE (3)(4) PRICE (3)(4) FEE (4)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $0.02
par value per share 200,000 shares $ 53.125 $ 10,625,000 $ 2,954
======================================================================================================================
</TABLE>
(1) The securities to be registered include an aggregate of 200,000 shares
reserved for issuance under the Dallas Semiconductor Corporation
Employee Stock Purchase Plan (the "Plan").
(2) Pursuant to Rule 416, this Registration Statement also covers such
additional shares as may hereinafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends,
recapitalizations or certain other capital adjustments.
(3) Estimated solely for purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"). Accordingly, the price per
share of common stock offered hereunder pursuant to the Plan is based
on (i) 200,000 shares reserved for issuance under the Plan at a price
per share of $53.125 which is the average of the high and low prices
of the common stock reported on the New York Stock Exchange on October
25, 1999, which is a date within five business days prior to the date
of filing this Registration Statement.
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<PAGE> 2
PART I
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
*Information required by Part I of Form S-8 (Items 1 & 2) to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Dallas Semiconductor Corporation (the "Company") hereby incorporates by
reference in this Registration Statement the following documents previously
filed by the Company with the Securities and Exchange Commission (the
"Commission"):
(1) The Company's Annual Report on Form 10-K filed with the Commission
for the fiscal year ended January 3, 1999.
(2) The Company's Quarterly Report on Form 10-Q filed with the
Commission for the quarters ending April 4, 1999 and July 4, 1999.
(3) The description of the Company's common stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a corporation to indemnify any of its officers, directors or other
corporate agents against certain expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person to be indemnified in connection with certain actions, suits or
proceedings (threatened, pending or completed) if the person to be indemnified
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
The Certificate of Incorporation and Bylaws of the Company each contain
provisions regarding the indemnification of directors and officers of the
Company. Subject to certain limitations expressed therein, Article IX of the
Company's Certificate of Incorporation provides for the indemnification of the
Company's officers and directors to
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the fullest extent permitted by the DGCL. In addition, the Company's bylaws
provide expanded rights of indemnification including expressly authorizing
against penalties and punitive damages, as well as against judgments and amounts
paid in settlement of derivative suits, and under certain circumstances,
indemnification for expenses incurred by a director in defending a third party
or corporate proceeding which are required to be paid by the corporation on
behalf of such director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
Registration Statement.
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
------- ----------------------
<S> <C>
4.3 Dallas Semiconductor Corporation Employee Stock Purchase
Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit 5.1
hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included with signature page of this
Registration Statement)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed 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.
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<PAGE> 4
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
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 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 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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<PAGE> 5
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 Dallas, State of Texas, on October 20, 1999.
DALLAS SEMICONDUCTOR CORPORATION
By: /s/ C. V. Prothro
--------------------------------------
C.V. Prothro
Chairman of the Board of Directors,
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints C.V. Prothro and M.D. Sampels and
each of them, each with full power to act without the other, his 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 or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto each of said attorneys-in-fact and
agents 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 that each of said attorneys-in-fact and agents or his substitutes may
lawfully 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
dates included:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ C. V. Prothro Chairman of the Board of Directors October 20, 1999
- --------------------------- President and Chief Executive Officer
C. V. Prothro
/s/ Alan P. Hale Vice President - Finance October 20, 1999
- ---------------------------
Alan P. Hale
/s/ Chao C. Mai Senior Vice President and Director October 20, 1999
- ---------------------------
Chao C. Mai
/s/ Michael L. Bolan Vice President - Marketing and October 20, 1999
- --------------------------- Product Development and Director
Michael L. Bolan
/s/ Jack R. von Gillern Vice President - Sales October 20, 1999
- ---------------------------
Jack R. von Gillern
/s/ M. D. Sampels Director October 20, 1999
- ---------------------------
M. D. Sampels
/s/ Richard L. King Director October 20, 1999
- ---------------------------
Richard L. King
/s/ Carmelo J. Santoro Director October 20, 1999
- ---------------------------
Carmelo J. Santoro
/s/ E. R. Zumwalt, Jr. Director October 20, 1999
- ---------------------------
E. R. Zumwalt, Jr.
</TABLE>
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<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Description of Exhibit
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<S> <C>
4.3 Dallas Semiconductor Corporation Employee Stock Purchase
Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit 5.1
hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included with signature page of this
Registration Statement)
</TABLE>
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<PAGE> 1
EXHIBIT 4.3
DALLAS SEMICONDUCTOR CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Employee Stock Purchase
Plan of Dallas Semiconductor Corporation:
1. PURPOSE. The purpose of the Plan is to provide Employees of the
Company and its Subsidiaries with an opportunity to purchase Common Stock of the
Company through accumulated payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
section 423 of the Code (as defined below). The provisions of the Plan shall be
construed accordingly, so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. DEFINITIONS.
(a) "Act" shall mean the Securities Exchange Act of 1934, as
amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Common Stock" shall mean the common stock, $.02 par value
per share, of the Company.
(e) "Committee" shall mean the committee appointed pursuant to
PARAGRAPH 11.
(f) "Company" shall mean Dallas Semiconductor Corporation, a
Delaware corporation, or any successor which adopts this Plan.
(g) "Compensation" shall mean all base straight-time earnings,
exclusive of payments for overtime, shift premium, incentive compensation,
incentive payments, bonuses or other compensation.
(h) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee. Continuous Status
as an Employee shall not be considered interrupted in the case of a leave of
absence that meets the requirements of PARAGRAPH 9(b).
(i) "Designated Subsidiary" shall mean any Subsidiary that has
adopted the Plan in accordance with PARAGRAPH 29.
(j) "Eligible Employee" shall have the meaning defined in
PARAGRAPH 3(a).
(k) "Employee" shall mean any person, including an officer,
who is customarily employed for at least twenty (20) hours per week and for more
than five (5) months in the calendar year
<PAGE> 2
by an Employer, provided, however, that no individual shall be considered an
Employee for purposes of this Plan if a country's law prohibits the granting of
options under this Plan to individuals who are citizens of that country. The
determination of whether an individual is an Employee for purposes of this Plan
shall be made in accordance with the rules under Section 3401(c) of the Code and
the Treasury Regulations thereunder.
(l) "Employer" shall mean the Company and each of its
Designated Subsidiaries.
(m) "Enrollment Agreement" shall have the meaning defined in
PARAGRAPH 4(a).
(n) "Exercise Date" shall mean the last day of each Offering
Period.
(o) "Exercise Price" shall have the meaning as defined in
PARAGRAPH 6(b).
(p) "Grant Date" shall mean the first day of each Offering
Period.
(q) "Offering Period" shall mean that period to be determined
by the Committee beginning on the date Eligible Employees are offered the
opportunity to purchase Shares hereunder. The first Offering Period shall begin
on November 1, 1999 and shall end on April 30, 2000. Until changed by the
Committee, in its sole and absolute discretion, a new Offering Period shall
begin on the first day of each six calendar month period beginning on each May 1
and November 1 of a calendar year and shall end on the end of such six month
period.
(r) "Participant" shall mean an Eligible Employee who has
elected to participate herein by authorizing payroll deductions pursuant to
PARAGRAPH 4.
(s) "Payroll Deduction Account" shall mean the separate
account maintained hereunder to record the amount of a Participant's
Compensation that has been withheld pursuant to PARAGRAPH 5.
(t) "Plan" shall mean the Dallas Semiconductor Corporation
Employee Stock Purchase Plan.
(u) "Share" shall mean a share of Common Stock.
(v) "Subsidiary" shall mean a corporation, domestic or
foreign, of which, at the time of the granting of the option pursuant to
PARAGRAPH 6, not less than fifty percent (50%) of the total combined voting
power of all classes of stock are held by the Company or a Subsidiary, whether
or not such corporation now exists or is hereafter organized or acquired by the
Company or a Subsidiary.
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<PAGE> 3
3. ELIGIBILITY.
(a) General Rule. Any Employee on a Grant Date shall be an
"Eligible Employee" eligible to participate during the Offering Period beginning
on such Grant Date, subject to the requirements of PARAGRAPH 4(a) and the
limitations imposed by section 423(b) of the Code.
(b) Exceptions. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be an Eligible Employee if:
(i) Immediately after the Grant Date, such Employee
would own stock (including any stock he may be deemed to acquire
assuming his outstanding options were exercised and any stock which
would be attributed to such Employee by application of section 424(d)
of the Code) possessing five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of any
Subsidiary computed in accordance with section 423(b)(3) of the Code;
or
(ii) Such option would give such Employee a right to
purchase stock under all employee stock purchase plans (described in
section 423 of the Code) of the Company and its Subsidiaries to accrue
at a rate which exceeds twenty-five thousand dollars ($25,000) of the
fair market value of such stock (determined at the time such option is
granted) for each calendar year in which such option is outstanding at
any time, in accordance with the provisions of section 423(b)(8) of the
Code.
4. PARTICIPATION.
(a) An Eligible Employee may become a Participant in the Plan
by completing an Enrollment Agreement authorizing payroll deductions, in a form
substantially similar to EXHIBIT A attached to this Plan ("Enrollment
Agreement"), and filing it with the Company's Human Resources Department five
(5) business days prior to the applicable Grant Date, unless a later time for
filing the Enrollment Agreement is set by the Committee for all Eligible
Employees with respect to a given Offering Period. A Participant's Enrollment
Agreement will remain in effect for all subsequent Offering Periods under which
the Participant remains an Eligible Employee, until changed by the Participant.
A change in an Enrollment Agreement will be treated as a new Enrollment
Agreement subject to the provisions hereof.
(b) Payroll deductions for a Participant shall commence with
the first payroll check date following the Grant Date and shall end on the last
payroll check date in the Offering Period to which such authorization is
applicable, unless sooner terminated by the Participant as provided in PARAGRAPH
9.
(c) An Eligible Employee who does not authorize a payroll
deduction by timely completing and filing an Enrollment Agreement for an
Offering Period waives his right to participate for such Offering Period. The
Employee's waiver of participation is effective for only the Offering Period to
which
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it relates and shall be irrevocable with respect to such Offering Period. Except
as otherwise provided in this Paragraph, an Employee's waiver of participation
for a specified Offering Period shall not, in and of itself, adversely impact
the right of such Employee to participate in the Plan during any subsequent
Offering Periods except those Offering Periods with respect to which he waives
participation in accordance with the provisions of this Paragraph.
5. PAYROLL DEDUCTIONS.
(a) At the time a Participant files his or her Enrollment
Agreement, such Participant shall elect to have payroll deductions (in whole
percentage increments) made on each pay date during the Offering Period in an
amount of not less than one percent (1%) nor more than twenty percent (20%) of
the Compensation which he or she receives on each pay date during the Offering
Period.
(b) All payroll deductions made by a Participant shall be
credited to his or her Payroll Deduction Account under the Plan. No interest
shall accrue on the payroll deductions in a Participant's Payroll Deduction
Account in the Plan.
(c) No changes in the rate of payroll deductions during an
Offering Period other than a withdrawal pursuant to PARAGRAPH 9 are permitted.
6. GRANT OF OPTION.
(a) On the Grant Date of each Offering Period during the term
of the Plan each Participant in such Offering Period shall be granted an option
to purchase up to a number of Shares determined by dividing the percentage of
such Participant's Compensation specified in the Participant's applicable
Enrollment Agreement by the Exercise Price; provided, however, that the number
of Shares subject to such option shall be reduced, if necessary, to a number of
shares which would not exceed the limitations described in PARAGRAPH 3(b) or
PARAGRAPH 10(A) hereof. The fair market value of a Share shall be determined as
provided in PARAGRAPH 6(b).
(b) The "Exercise Price" per Share offered in a given Offering
Period shall be determined by the Committee but shall not be less than the lower
of: (i) eight-five percent (85%) of the fair market value of a Share on the
Grant Date, or (ii) eighty-five percent (85%) of the fair market value of a
Share on the Exercise Date. The fair market value of a Share on a given date
shall be the closing price of such Share as reported by the New York Stock
Exchange or reported on such other national exchange as it may, from time to
time, be reported on, on such date (or if there shall be no trading on such
date, then on the first previous date on which there is such trading), unless
the Shares cease to be traded on a national exchange. If the Shares cease to be
traded on a national exchange, fair market value shall be determined by the
Committee in its discretion consistent with section 423 of the Code or the
regulations thereunder.
(c) All grants made hereunder shall be deemed to have been
made on the applicable Grant Date.
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<PAGE> 5
7. EXERCISE OF OPTION. The Participant's option for the purchase of
Shares will be exercised automatically on the Exercise Date of each Offering
Period, and the maximum number of Shares subject to such option will be
purchased for such Participant at the applicable Exercise Price with the payroll
deductions accumulated in his or her Payroll Deduction Account, unless prior to
such Exercise Date the Participant has withdrawn from the Offering Period as
provided in PARAGRAPH 9. During a Participant's lifetime a Participant's option
to purchase Shares hereunder is exercisable only by such Participant. Any amount
remaining in the Participant's Payroll Deduction Account after the Offering
Period shall be held in the Payroll Deduction Account until the next Offering
Period, unless the Offering Period has been oversubscribed or has terminated, in
which case such amount shall be refunded to the Participant.
The Board may, in its discretion, require a Participant to pay to the
Company at the time of exercise of an option (or portion of an option) the
amount that the Company deems necessary to satisfy its obligation to withhold
Federal, state or local income or other taxes incurred by reason of the
exercise. If the exercise of an option does not give rise to an obligation to
withhold Federal income or other taxes on the date of exercise, the Company may,
in its discretion, require a Participant to place Shares purchased under the
option in escrow for the benefit of the Company until such time as Federal
income or other tax withholding is no longer required with respect to such
Shares or until such withholding is required on amounts included in the gross
income of the Participant as a result of the exercise of an Option or the
disposition of Shares acquired pursuant to the exercise. At such later time, the
Company, in its discretion, may require a Participant to pay to the Company the
amount that the Company deems necessary to satisfy its obligation to withhold
Federal, state or local income or other taxes incurred by reason of the exercise
of the option or the disposition of Shares. Upon receipt of such payment by the
Company, such Shares shall be released from escrow to the Participant.
8. DELIVERY. As soon as practicable after the Exercise Date, the
Committee shall arrange the delivery to each Participant who requests it, or to
his account at a brokerage firm, of a certificate representing the Shares
purchased upon exercise of his or her option.
9. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A Participant may withdraw all, but not less than all, of
the payroll deductions credited to his or her Payroll Deduction Account and not
yet used toward the exercise of his or her option under the Plan at any time by
giving a minimum of five (5) business days written notice to the Committee on
such form as the Committee shall designate and which shall be obtainable from
the Company's Human Resources Department. All of the Participant's payroll
deductions credited to his or her Payroll Deduction Account that have not yet
been used to purchase Shares will be paid to such Participant as soon as
practicable after receipt of his or her notice of withdrawal. No interest will
be owed or paid on amounts withdrawn pursuant to this Paragraph. A withdrawal of
a Participant's Payroll Deduction Account shall terminate the Participant's
participation for the Offering Period in which the withdrawal occurs. No further
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<PAGE> 6
payroll deductions for the purchase of Shares will be made during the Offering
Period.
(b) Upon termination of the Participant's Continuous Status as
an Employee for any reason, he or she will be deemed to have elected to withdraw
from the Plan, the payroll deductions credited to his or her Payroll Deduction
Account will be returned to such Participant and his or her option will be
canceled. Notwithstanding the preceding, a Participant who goes on a leave of
absence shall be permitted to remain in the Plan with respect to an Offering
Period which commenced prior to the beginning of his or her leave of absence. If
such Participant is not guaranteed reemployment by contract or statute and the
leave of absence exceeds ninety (90) days, such Participant shall be deemed to
have terminated employment for purposes of the Plan on the ninety-first (91st)
day of such leave of absence.
(c) Payroll deductions for a Participant on a paid leave of
absence will continue at the same rate as in effect prior to such leave and the
Participant's option for the purchase of Shares will be automatically exercised
pursuant to PARAGRAPH 7. Payroll deductions for a Participant on an unpaid leave
of absence will cease as of the first day of the leave of absence but will
resume upon the Participant's return to work at the same rate as in effect prior
to such leave and the Participant's option for the purchase of Shares will be
automatically exercised pursuant to PARAGRAPH 7. In the event either a paid or
unpaid leave of absence begins in one Offering Period and ends in a subsequent
Offering Period, the Participant shall not be permitted to re-enter the Plan
until a new Enrollment Agreement is filed with respect to the Offering Period
which commences after such Participant has returned to work from the leave of
absence. A Participant may elect to withdraw from the Plan pursuant to PARAGRAPH
9(a), at the beginning of either a paid or unpaid leave of absence.
(d) A Participant's withdrawal from one Offering Period will
result in the ineligibility of the Participant to again participate in that
Offering Period but will not have any effect upon his or her eligibility to
participate in any subsequent Offering Period or any similar plan which may
hereafter be adopted by the Company.
10. SHARES.
(a) The maximum number of Shares which shall be made available
for sale under the Plan shall be 200,000 Shares, subject to adjustment upon
changes in capitalization of the Company as provided in PARAGRAPH 16. Either
authorized and unissued Shares or issued Shares heretofore or hereafter
reacquired by the Employer may be made subject to purchase under the Plan, in
the sole and absolute discretion of the Committee. Further, if for any reason
any purchase of any Shares under the Plan is not consummated, Shares subject to
such Enrollment Agreement may be subjected to a new Enrollment Agreement under
the Plan. If, on the Exercise Date, the number of Shares with respect to which
options are to be exercised exceeds the number of Shares then available under
the Plan, the Company shall make a pro rata allocation of the Shares remaining
available for purchase in as uniform a manner as shall be practicable and as it
shall determine to be equitable. In such event, the Company shall give written
notice of such reduction of the Shares which each Participant shall be allowed
to purchase. Notwithstanding
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anything to the contrary herein, the Company shall not be obligated to issue
Shares hereunder if, in the opinion of counsel for the Company, such issuance
would constitute a violation of federal or state securities laws.
(b) The Participant will have no interest or voting right in
Shares covered by his or her option until such option has been exercised and the
Shares have been issued or transferred to the Participant.
(c) Shares to be delivered to a Participant under the Plan
will be registered in the name of the Participant or, at the prior written
request of the Participant, in the names of the Participant and his or her
spouse.
11. ADMINISTRATION. The Plan shall be administered by a Committee
appointed by the Board. Such Committee shall have all powers with respect to the
Plan, except for amending or terminating the Plan as set forth in PARAGRAPH 17
hereof.
(a) Each member of the Committee shall serve until his
successor is appointed. Any member of the Committee may be removed at any time
by the Board, with or without cause, which shall have the power to fill any
vacancy which may occur. A Committee member may resign by giving thirty (30)
days written notice to the Company.
(b) The members of the Committee shall serve without
compensation for services as such, but the Company shall pay all expenses of the
Committee.
(c) The Committee shall have the following powers and duties:
(1) To direct the administration of the Plan in
accordance with the provisions herein set forth;
(2) To adopt rules of procedure and regulations
necessary for the administration of the Plan provided the rules are not
inconsistent with the terms of the Plan;
(3) To determine all questions with regard to rights
of Employees and Participants under the Plan, including, but not limited to, the
eligibility of an Employee to participate in the Plan;
(4) To enforce the terms of the Plan and the rules
and regulations it adopts;
(5) To direct the distribution of the Shares
purchased hereunder;
(6) To furnish the Employer with information which
the Employer may require for tax or other purposes;
7
<PAGE> 8
(7) To engage the service of counsel (who may, if
appropriate, be counsel for an Employer) and agents whom it may deem advisable
to assist it with the performance of its duties;
(8) To prescribe procedures to be followed by
Participants in electing to participate herein;
(9) To receive from each Employer and from Employees
such information as shall be necessary for the proper administration of the
Plan;
(10) To maintain, or cause to be maintained, separate
accounts in the name of each Participant to reflect the Participant's Payroll
Deduction Account under the Plan; and
(11) To interpret and construe the Plan.
12. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a
beneficiary (as indicated in the Enrollment Agreement or otherwise) who is to
receive any Shares under the Plan in the event of such Participant's death
subsequent to the Exercise Date on which an option is exercised but prior to the
issuance of such Shares. In addition, a Participant may file a written
designation of a beneficiary who is to receive any cash from the Participant's
Payroll Deduction Account under the Plan in the event of such Participant's
death prior to the Exercise Date of the option.
Such designation of beneficiary may be changed by the Participant at
any time by written notice. In the event of the death of a Participant and in
the absence of a beneficiary validly designated under the Plan, the Committee
shall deliver such Shares and/or cash to the executor or administrator of the
estate of the Participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company or Committee), the Committee, in its
discretion, may deliver such Shares and/or cash to the spouse or to any one or
more dependents or relatives of the Participant, or if no spouse, dependent or
relative is known to the Committee, then to such other person as the Committee
may designate.
13. TRANSFERABILITY. Any rights with regard to the exercise of an
option to receive Shares under the Plan, may not be assigned, transferred,
pledged or otherwise disposed of in any way except as provided in PARAGRAPH 12
by the Participant. Furthermore, payroll deductions credited to Participants'
Payroll Deduction Accounts may not be assigned, transferred, pledged or
otherwise disposed of in any way (other than by will, the laws of descent and
distribution or as provided in PARAGRAPH 12) by the Participant. Any such
attempt at assignment, transfer, pledge or other disposition shall be without
effect, except that the Committee may treat such transfer as an election to
withdraw funds in accordance with PARAGRAPH 9.
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<PAGE> 9
14. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose, and
the Company shall not be obligated to segregate such payroll deductions.
15. REPORTS. Individual Payroll Deduction Accounts will be maintained
for each Participant in the Plan. Statements for Participants' Payroll Deduction
Accounts will be given to Participants as soon as practicable following an
Exercise Date, and such statements will set forth the amount of payroll
deductions, the per Share purchase price and the number of Shares purchased.
16. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If an option under this
Plan is exercised subsequent to any stock split, spinoff, recapitalization,
reorganization, reclassification, merger, consolidation, exchange of Shares, or
the like occurring after such option was granted, as a result of which shares of
any class of stock shall be issued in respect of the outstanding Shares, or
Shares shall be changed into a different number of the same or another class or
classes, the number of Shares to which such option shall be applicable and the
Exercise Price for such Shares shall be appropriately adjusted by the Company.
Any such adjustment, however, in the Shares shall be made without change in the
total price applicable to the portion of the Shares purchased hereunder which
has not been fully paid for, but with a corresponding adjustment, if
appropriate, in the Exercise Price for the Shares.
In the event of the proposed dissolution or liquidation of the Company
or upon a proposed reorganization, merger, or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation, or upon a proposed sale of substantially all of the property or
stock of the Company to another corporation, the Offering Period will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board, and the holder of each option then outstanding under the
Plan will thereafter be entitled to receive, upon the exercise of such option,
as nearly as reasonably may be determined, the cash, securities, and/or property
which a holder of one Share was entitled to receive upon and at the time of such
transaction for each Share to which such option shall be exercised. The Board
shall take such steps in connection with such transactions as the Board shall
deem necessary to assure that the provisions of this Paragraph shall thereafter
be applicable, as nearly as reasonably may be determined, in relation to the
said cash, securities, and/or property as to which such holder of such option
might thereafter be entitled to receive.
17. AMENDMENT OR TERMINATION. The Board may at any time and for any
reason terminate or amend the Plan. Except as specifically provided in the Plan,
no such termination can affect options previously granted. Except as
specifically provided in the Plan or as required to obtain a favorable ruling
from the Internal Revenue Service or to comply with tax or securities law, no
amendment may make any change in any option theretofore granted which adversely
affects the rights of any Participant. To the extent necessary to comply with
Rule 16b-3 under the Act or section 423 of the Code (or any successor rule or
provision or any other applicable law or regulation), the Company shall obtain
stockholder approval in such manner and to such a degree as required.
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<PAGE> 10
18. NOTICES. All notices or other communications by a Participant to
the Company or Committee under or in connection with the Plan shall be deemed to
have been duly given when received in the form specified by the Committee at the
location, or by the person, designated by the Committee for the receipt thereof.
19. STOCKHOLDER APPROVAL. Commencement of the Plan shall be subject to
approval by the stockholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Notwithstanding any provision to the
contrary, failure to obtain such stockholder approval shall void the Plan, any
options granted under the Plan, any Share purchased pursuant to the Plan, and
all rights of all Participants.
20. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance and
delivery of such Shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require
the person exercising such option to represent and warrant at the time of any
such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
21. TERM OF PLAN. The Plan shall become effective upon its adoption by
the Board. It shall continue in effect for a term of ten (10) years unless
sooner terminated under PARAGRAPH 17.
22. NO RIGHTS IMPLIED. Nothing contained in this Plan or any
modification or amendment to the Plan or in the creation of any Payroll
Deduction Account, or the execution of any Enrollment Form, or the issuance of
any Shares, shall give any Employee or Participant any right to continue
employment, any legal or equitable right against the Employer or Company or any
officer, director, or Employee, except as expressly provided by the Plan.
23. SEVERABILITY. In the event any provision of the Plan shall be held
to be illegal or invalid for any reason, the illegality or invalidity shall not
affect the remaining provisions of the Plan, but shall be fully severable and
the Plan shall be construed and enforced as if the illegal or invalid provision
had never been included herein.
24. WAIVER OF NOTICE. Any person entitled to notice under the Plan may
waive the notice.
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<PAGE> 11
25. SUCCESSORS AND ASSIGNS. The Plan shall be binding upon all persons
entitled to purchase Shares under the Plan, their respective heirs, legatees,
and legal representatives and upon the Employer, its successors and assigns.
26. HEADINGS. The titles and headings of the Paragraphs are included
for convenience of reference only and are not to be considered in construction
of the provisions hereof.
27. GOVERNING LAW. All questions arising with respect to the provisions
of this Plan shall be determined by application of the laws of the State of
Delaware except to the extent Delaware law is preempted by federal statute. The
obligation of the Employer to sell and deliver Shares under the Plan is subject
to applicable laws and to the approval of any governmental authority required in
connection with the authorization, issuance, sale or delivery of such Shares.
28. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. Neither the members of
the Board nor any member of the Committee (nor their delegates) shall be liable
for any act, omission, or determination taken or made in good faith with respect
to the Plan or any right to purchase Shares granted under it, and members of the
Board and the Committee (and their delegates) shall be entitled to
indemnification and reimbursement by the Company in respect of any claim, loss,
damage, or expense (including attorneys' fees, the costs of settling any suit,
provided such settlement is approved by independent legal counsel selected by
the Company, and amounts paid in satisfaction of a judgment, except a judgment
based on a finding of bad faith) arising therefrom to the full extent permitted
by law and under any directors and officers liability or similar insurance
coverage that may from time to time be in effect.
29. PARTICIPATING EMPLOYERS. This Plan shall constitute the employee
stock purchase plan of the Company and each Designated Subsidiary. A Designated
Subsidiary may adopt and participate in this Plan beginning as of the next Grant
Date, provided the Board has consented to such Designated Subsidiary's
participation. A Designated Subsidiary may withdraw from the Plan as of any
Grant Date by giving written notice to the Board, and such notice must be
received by the Board at least 30 days prior to such Grant Date.
30. NO GUARANTEE OF INTERESTS OR TAX TREATMENT. Neither the Committee
nor the Company guarantees the Common Stock from loss or depreciation. Neither
the Committee nor the Company guarantees favorable tax treatment for the
purchase of Shares hereunder.
31. PAYMENT OF EXPENSES. All expenses incident to the administration,
termination, or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Company.
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<PAGE> 12
IN WITNESS WHEREOF, this Employee Stock Purchase Plan has been executed
effective this 20th day of October, 1999.
DALLAS SEMICONDUCTOR CORPORATION
By: /s/ C. V. PROTHRO
ATTEST: ------------------------------
/s/ MARLA K. SUGGS Its: President and CEO
- ------------------------------ -----------------------------
Secretary
12
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF JENKENS & GILCHRIST]
October 20, 1999
Dallas Semiconductor Corporation
4401 South Beltwood Parkway
Dallas, Texas 75244-3292
Re: Dallas Semiconductor Corporation - Form S-8 Registration Statement
Gentlemen:
We have acted as counsel to Dallas Semiconductor Corporation, a
Delaware corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about October 21, 1999, under
the Securities Act of 1933, as amended (the "Securities Act"), relating to
200,000 shares (the "Shares") of the $0.02 par value common stock (the "Common
Stock") of the Company that have been or may be issued by the Company pursuant
to the Dallas Semiconductor Corporation Employee Stock Purchase Plan (the
"Plan").
You have requested the opinion of this firm with respect to certain
legal aspects of the proposed offering. In connection therewith, we have
examined and relied upon the original, or copies identified to our satisfaction,
of (1) the Certificate of Incorporation of the Company, as amended; (2) the
Bylaws of the Company, as amended; (3) minutes and records of the corporate
proceedings of the Company with respect to the establishment of the Plan, the
reservation of 200,000 Shares to be issued pursuant to the Plan and to which the
Registration Statement relates, the issuance of the shares of Common Stock
pursuant to the Plan and related matters; (4) the Registration Statement and
exhibits thereto, including the Plan; and (5) such other documents and
instruments as we have deemed necessary for the expression of opinions herein
contained. In making the foregoing examinations, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to various questions of fact
material to this opinion, and as to the content and form of the Certificate of
Incorporation, as amended, the Bylaws, as amended, minutes, records, resolutions
and other documents or writings of the Company, we have relied, to the extent
deemed reasonably appropriate, upon representations or certificates of officers
or directors of the Company and upon documents, records and instruments
furnished to us by the Company, without independent check or verification of
their accuracy.
Based upon the firm's examination, consideration of, and reliance on
the documents and other matters described above and subject to the assumptions
noted below, this firm is of the opinion that the Company presently has
available 200,000 Shares of authorized but unissued and/or treasury shares of
Common Stock which may be issued as the Shares pursuant to the Plan. Assuming
that:
(1) the Shares to be granted in the future under the Plan will be duly
granted in accordance with the terms of the Plan;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons granted
Shares under the Plan; and
(3) the consideration for the Shares issued pursuant to the Plan is
actually received by the Company as provided in the Plan and exceeds the par
value of such shares;
then, we are of the opinion that, the Shares that may be issued or sold in
accordance with the terms of the Plan will be, when and if issued, duly and
validly issued, fully paid and nonassessable.
<PAGE> 2
Dallas Semiconductor Corporation
October 20, 1999
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to us included in or made a part of the
Registration Statement. In giving this consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
A Professional Corporation
By: /s/ M. D. Sampels
-----------------------------
M. D. Sampels,
Authorized Signatory
cc: Mr. C.V. Prothro
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Dallas Semiconductor Corporation Employee Stock Purchase
Plan, of our report dated January 13, 1999, with respect to the consolidated
financial statements and schedule of Dallas Semiconductor Corporation included
in its Annual Report (Form 10-K) for the year ended January 3, 1999, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
October 22, 1999
