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Registration No.____________________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DSP Technology Inc.
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(Exact name of registrant as specified in its charter)
California 94-2832651
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
48500 Kato Road
Fremont, CA 94538
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(Address of principal executive offices) (Zip code)
DSP TECHNOLOGY INC.
1991 STOCK OPTION PLAN AND
INDIVIDUAL STOCK OPTION AGREEMENTS
WITH MR. MICHAEL FORD
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(Full title of the plan)
Jose M. Millares, Jr.
Chief Financial Officer
DSP Technology Inc.
48500 Kato Road
Fremont, CA 94538
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 510/657-7555
This registration statement, including all exhibits and attachments, contains 9
pages. The exhibit index may be found on page 7 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered/1/ registered share price fee
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<S> <C> <C> <C> <C>
1991 Stock Option Plan
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Common Stock 187,414 $5.38 $1,008,287.32 $305.54
73,520 $6.41 $ 471,263.20 $142.81
49,066 $5.50 $ 269,863.00 $ 81.78
Stock Option Agreements with Mr. Michael Ford
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Common Stock 3,000 $6.75 $ 20,250.00 $ 6.14
3,000 $5.75 $ 17,250.00 $ 5.23
TOTAL 316,000 $1,786,913.52 $541.50
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/1/ The securities to be registered include options to purchase such Common
Stock. The offering prices are estimated pursuant to Rule 457 solely for
purposes of calculating the registration fee. With respect to shares to be
issued under outstanding options, the price is based upon the exercise price.
With respect to the remaining shares, the price is based upon the average of the
high and low prices of the Common Stock on April 28, 1997, as reported on the
National Association of Securities Dealers Automated Quotations System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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DSP Technology Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(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"), containing audited financial statements for the Company's
latest fiscal year ended January 31, 1997 as filed with the Securities and
Exchange Commission ("Commission") on May 1, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
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All 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 to this registration statement which indicates that all securities
offered hereby have been sold or which deregisters all securities 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
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The class of securities offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Inapplicable.
Item 6. Indemnification of Directors and Officers
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Section 204 of the General Corporation Law of the State of California
authorizes a corporation to adopt a provision in its articles of incorporation
eliminating the personal liability of directors to corporations and their
shareholders for monetary damages for breach or alleged breach of directors'
"duty of care." Following a California corporation's adoption of such a
provision, its directors are not accountable to corporations and their
shareholders for monetary damages for conduct constituting negligence (or gross
negligence) in the exercise of their fiduciary duty; directors continue to be
subject to equitable remedies such as injunction or rescission. Under
California law, a director also continues to be liable for (1) a breach of his
or her duty of loyalty, (2) acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, (3) illegal payments of
dividends and (4) approval of any transaction from which a director derives an
improper personal benefit. The adoption of such a provision in the articles of
incorporation also does not limit directors' liability for violations of the
federal securities laws. Section 317 of the General Corporation Law of the
State of California provides for the indemnification of officers, directors and
other corporate agents in terms sufficiently broad to indemnity such persons,
under certain circumstances, for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended.
Section 317 also provides that the indemnification provided by this section is
not exclusive to the extent additional rights are authorized in a corporation's
articles of incorporation.
The Company's Articles of Incorporation provide that the liability of the
directors for monetary damages shall be eliminated to the fullest extent
permissible under California law. Pursuant to California law, the Company's
directors shall not be liable for monetary damages for breach of the directors'
fiduciary duty of care to the Company and its shareholders. However, this
provision does not eliminate the duty of care, and in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief will
remain available under California law. In addition, each director will continue
to be subject to liability for (i) acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) acts or omissions
that a director believes to be contrary to the best interests of the Company or
its shareholders or that involve the absence of good faith
on the part of the director, (iii) any transaction from which a director derived
an improper
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personal benefit, (iv) acts or omissions that show a reckless disregard for the
director's duty to the Company or its shareholders in circumstances in which the
director was aware, or should have been aware, in the ordinary course of
performing a director's duties, of a risk of serious injury to the Company or
its shareholders, (v) acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its shareholders, (vi) any transaction that constitutes an illegal
distribution or dividend under California law, and (vii) any transaction
involving an unlawful conflict of interest between the director and the Company
under California law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) Rule 415 Offering
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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 of 1933;
(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)(l)(ii) do not apply if the
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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 of 1933, each such post-effective amendment shall be deemed to be
a new registration
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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) Filing incorporating subsequent Exchange Act documents by reference
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The undersigned registrant hereby undertakes 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
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.
(h) Request for acceleration of effective date or filing of registration
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statement on Form S-8
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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 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.
SIGNATURE
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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 May 2, 1997.
DSP TECHNOLOGY INC.
By: /s/ Jose M. Millares, Jr.
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Jose M. Millares, Jr., Chief Financial
Officer
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POWER OF ATTORNEY
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The officers and directors of DSP Technology Inc. whose signatures appear
below, hereby constitute and appoint F. Gil Troutman, Jr. and Jose M. Millares,
Jr., and each of them, their true and lawful attorneys and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, or their or his substitutes,
shall do or cause to be done by virtue hereof. Pursuant to the requirements of
the Securities Act of 1933, as amended, this registration statement has been
signed by the following persons in the capacities indicated on May 2, 1997.
Signature Title
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/s/ F. Gil Troutman, Jr.
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F. Gil Troutman, Jr. President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Jose M. Millares, Jr.
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Jose M. Millares, Jr. Vice President, Finance, Chief Financial
Officer and Secretary (Principal Financial
Officer and Principal Accounting Officer)
/s/ Howard O. Painter, Jr.
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Howard O. Painter, Jr. Director and Chairman of the Board
/s/ Michael A. Ford
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Michael A. Ford Director
/s/ J. Scott Kamsler
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J. Scott Kamsler Director
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EXHIBIT INDEX
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4.1. Restated Articles of Incorporation of the Company are incorporated by
reference to Exhibit 3.1 to the Company's registration statement on
Form S-1 (No. 2-99364) filed August 1, 1985
4.2. Amendment to Restated Articles of Incorporation of the Company are
incorporated by reference to Exhibit 3.2 to Amendment No. 1 to the
Company's registration statement on Form S-1 (No. 2-99364) filed on
November 5, 1985
4.3. Certificate of Amendment of Articles of Incorporation of the Company
are incorporated by reference to Exhibit 3.5 to the Company's annual
report on Form 10-K (No. 0-14677) filed April 14, 1989
4.4. Amended and Restated Bylaws of the Company are incorporated by
reference to Exhibit 3.3 to the Company's annual report on Form 10-K
(No. 0-14677) filed April 14, 1989
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Grant Thornton LLP
24 Power of Attorney (included in signature pages to this registration
statement)
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[LETTERHEAD OF GRAY CARY WARE FREIDENRICH APPEARS HERE]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (415) 328-6561
FAX (415) 327-3699
EXHIBIT NO. 5
OUR FILE NO.
1040512-903000
May 2, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for DSP Technology Inc., a California corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 316,000 shares of the
Common Stock, without par value, of the Company which may be issued pursuant to
the exercise of options granted under the DSP Technology Inc. 1991 Stock Option
Plan ("1991 Plan") and granted to Mr. Michael Ford ("Ford Options"). We have
examined all instruments, documents and records which we deemed relevant and
necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we express
no opinion concerning any law other than the law of the State of California, and
the federal law of the United States. Based on such examination, we are of the
opinion that the 316,000 shares of Common Stock which may be issued upon
exercise of options granted under the 1991 Plan and upon exercise of the Ford
Options are duly authorized shares of the Company's Common Stock, and, when
issued against payment of the purchase price therefor in accordance with the
provisions of the 1991 Plan and the Ford Options, will be validly issued, fully
paid and nonassessable. We hereby consent to the filing of this opinion as an
exhibit to the above-referenced Registration Statement and the use of our name
wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated April 4, 1997 accompanying the consolidated
financial statements of DSP Technology Inc. and subsidiaries appearing in the
1997 Annual Report of the Company to its shareholders and accompanying schedule
included in the Annual Report on Form 10-K for the year ended January 31, 1997
which are incorporated by reference in the Registration Statement. We consent
to the incorporation by reference in the Registration Statement of the
aforementioned report.
/s/ Grant Thorton LLP
San Jose, California
April 29, 1997
