As filed with the Securities and Exchange Commission on September 2, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
POWER SPECTRA, INC.
(Exact name of Registrant as specified in its charter)
California 94-2687782
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
919 Hermosa Court
Sunnyvale, California 94086
(Address, including zip code, of Registrant's principal executive offices)
1991 DIRECTOR STOCK PLAN
(Full title of the plan)
GORDON H. SMITH
President and Chief Executive Officer
POWER SPECTRA, INC.
919 Hermosa Court
Sunnyvale, California 94086
(408) 737-7977
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
AARON J. ALTER, ESQ.
RAMSEY HANNA, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock issuable under 1991 Director 300,000 $0.5625 $168,750 $51.14
Stock Plan
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<FN>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Based upon the average of the bid and ask
prices per share of the Common Stock in over-the-counter trading as of
August 28, 1997.
</FN>
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<PAGE>
POWER SPECTRA, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference into this Registration
Statement and into the Prospectus relating to this Registration Statement
pursuant to Rule 428 the following documents and information heretofore filed
with the Securities and Exchange Commission (the "Commission"):
1. The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A dated
April 18, 1988 filed pursuant to Section 12 of the Securities
Exchange Act of 1934 (the "Exchange Act").
2. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996.
3. The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be 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
Not applicable.
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Item 6. Indemnification of Directors and Officers
Section 317 of the California Corporations Code authorizes the
Company's Board of Directors to grant indemnity to directors and officers in
terms sufficiently broad to permit such indemnification under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended (the "Securities Act").
Furthermore, Article IV of the Company's Amended and Restated Articles of
Incorporation eliminates the liability of a director for monetary damages to the
fullest extent permissible under California law. In addition, Article VI of the
Company's Bylaws provides for indemnification of certain officers, directors,
employees and other agents to the maximum extent permitted by the California
Corporations Code. The Company has entered into indemnification agreements with
its officers and directors which provide such persons with the maximum
indemnification allowed under applicable law. These agreements also resolve
certain procedural and substantive matters which are not covered, or are covered
in less detail, in the Bylaws or the California Corporations Code.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Document
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4.1 1991 Director Stock Plan, as amended and restated to date.
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Grant Thornton, L.L.P., Independent Accountants
23.2 Consent of Ernst & Young, L.L.P., Independent Auditors
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
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 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;
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<PAGE>
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby 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 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) Insofar as indemnification for liabilities arising under the
Securities Act, as amended may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the items described in Item 6
of Part II of this Registration Statement, 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Power Spectra, 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 the 28th day of August, 1997.
POWER SPECTRA, INC.
By: /s/ GORDON H. SMITH
-----------------------------------
Gordon H. Smith, President and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gordon H. Smith and Edward J. Lamb and
each of them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement (including post-effective amendments)
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement.
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.
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ GORDON H. SMITH President, Chief Executive Officer and August 28, 1997
- ---------------------------------------- Director (Principal Executive Officer)
Gordon H. Smith
/s/ EDWARD J. LAMB Chief Financial Officer (Principal August 28, 1997
- ---------------------------------------- Financial and Accounting Officer)
Edward J. Lamb
/s/ HAROLD T. BOWLING Director August 28, 1997
- ----------------------------------------
Harold T. Bowling
Director August ___, 1997
- -----------------------------------
James A. Glaze
/s/ JAY W. HUBBARD Director August 28, 1997
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Jay W. Hubbard
/s/ GENE J. KENNEDY Director August 28, 1997
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Gene J. Kennedy
/s/ JAMES A. LOVELL, JR. Director August 28, 1997
- ----------------------------------------
James A. Lovell, Jr.
Director August ___, 1997
- ----------------------------------------
John W. Pauly
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POWER SPECTRA, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 1991 Director Stock Plan, as amended and restated to date.
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Grant Thornton, L.L.P., Independent Accountants
23.2 Consent of Ernst & Young, L.L.P., Independent Auditors
23.3 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
POWER SPECTRA, INC.
1991 DIRECTOR STOCK PLAN
(as amended by the Board of Directors April 24, 1997,
and approved by the Shareholders on July 25, 1997)
1. PURPOSE OF THE PLAN.
The purpose of the Plan is to provide incentive compensation to
eligible members of the Board of Directors of Power Spectra, Inc. (the
"Company") in order to attract and retain the services of highly qualified
directors and to give such directors a proprietary interest in the success of
the Company's business by granting them shares of the Company's Common Stock.
2. DEFINITIONS.
As used herein, the following definitions shall apply:
(a) "Board" shall mean the Committee (as defined below) or the Board of
Directors of the Company if no Committee is then designated.
(b) "Business Day" shall mean any day other than Saturday, Sunday or a
federal holiday.
(c) "Committee" shall have the meaning as specified in Section 4(a) of
the Plan.
(d) "Common Stock" shall mean the common stock of the Company.
(e) "Company" shall mean Power Spectra, Inc., a California corporation.
(f) "Date of Grant" shall mean, with respect to any calendar quarter,
the last day of such calendar quarter.
(g) "Effective Date of the Plan" shall mean the date the Plan is
approved by the Company's shareholders in accordance with Section 8 hereof.
(h) "Eligible Director" shall mean any director of the Company who is
not an employee or full time consultant of the Company or a Subsidiary.
(i) "Plan" shall mean this 1991 Director Stock Plan.
(j) "Share" shall mean a share of Common Stock reserved for grant or
granted under the Plan.
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(k) "Subsidiary" shall mean a corporation of which not less than 50% of
the voting shares 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.
3. STOCK SUBJECT TO THE PLAN.
Subject to the provisions of Section 9 of the Plan, the maximum
aggregate number of Shares which may be issued under the Plan is 780,000 shares
of Common Stock, which may be authorized but unissued or reacquired Common
Stock.
4. ADMINISTRATION OF THE PLAN.
(a) Procedure. The Plan shall be administered by the Board of Directors
of the Company. The Board of Directors may appoint a Committee consisting of not
less than two members of the Board of Directors to administer the Plan on behalf
of the Board of Directors, subject to such terms and conditions as the Board of
Directors may prescribe. Once appointed, the Committee shall continue to serve
until otherwise directed by the Board of Directors. From time to time the Board
of Directors may increase the size of the Committee and appoint additional
members thereof, remove members (with or without cause) and appoint new members
in substitution therefor, fill vacancies however caused, or remove all members
of the Committee and thereafter directly administer the Plan. Members of the
Board who are eligible to participate in the Plan may vote on any matters
affecting the administration of the Plan.
(b) Powers of the Board: Subject to the provisions of the Plan, the
Board shall have the authority, in its discretion: (i) to interpret the Plan;
(ii) to prescribe, amend and rescind rules and regulations relating to the Plan;
(iii) to determine eligibility to participate in the Plan; (iv) to authorize any
person to execute on behalf of the Company any instrument required to effectuate
the Plan; and (v) to make all other determinations deemed necessary or advisable
for the administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations and
interpretations of the Board shall be final and binding on Eligible Directors
who have acquired Shares under the Plan, or as to whom the issuance of Shares
under the Plan has been authorized.
5. ELIGIBILITY.
Shares may be issued only to Eligible Directors. The Plan shall not
limit the authority of the shareholders of the Company to elect directors in
accordance with applicable law and shall not confer any rights on participating
directors with respect to nomination by the Company for reelection or continued
representation on the Board.
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6. PROCEDURE FOR STOCK GRANTS.
(a) All grants of Shares hereunder shall be automatic and
non-discretionary and shall be made strictly in accordance with the provisions
hereof.
(b) No person shall have any discretion to select which Eligible
Directors shall be granted Shares or to determine the number of Shares to be
granted to Eligible Directors.
(c) In consideration for services rendered to the Company during the
preceding quarter, each member of the Board of Directors who is an Eligible
Director on any Date of Grant shall automatically be granted Shares on such Date
of Grant. The number of Shares granted to each Eligible Director hereunder on
each such Date of Grant shall be equal to $3,125 divided by the fair market
value of one share of the Company's Common Stock determined as of such Date of
Grant; provided, however, that for Eligible Directors who were not directors for
the full quarter, the number of shares automatically granted pursuant hereto
shall be calculated as follows: (i) $3,125 times (ii) a fraction, the numerator
of which shall be the number of days which have elapsed between the date such
director first became a director and the Date of Grant, and the denominator of
which shall be 90, which product shall be divided by (iii) the fair market value
of one share of the Company's Common Stock on such Date of Grant; and provided,
further, that if any director ceases to be an Eligible Director at any time, the
Company shall, within 90 days of the date he or she ceases to be an Eligible
Director, issue to such person that number of shares as is determined by
multiplying $3,125 by a fraction, the numerator of which is the number of days
from the last Date of Grant until the date such person ceases to be an Eligible
Director and the denominator of which is 90, which product shall be divided by
the fair market value of one share of the Company's Common Stock on the last day
of the calendar quarter in which such person ceased to be an Eligible Director.
(d) The fair market value of the Common Stock shall be determined by
the Board in its discretion; provided, however, that where there is a public
market for the Common Stock, the fair market value per Share as of a particular
date shall be the closing bid price of the Common Stock in the over-the-counter
market on such date, as reported in The Wall Street Journal (or, if not so
reported, as otherwise reported by the National Association of Securities
Dealers Automated Quotation ("NASDAQ") System or by the National Quotations
Bureau) or, in the event the Common Stock is traded on the NASDAQ National
Market System or listed on a stock exchange, the fair market value per Share as
of a particular date shall be the closing price on such system or exchange on
such date, as reported in The Wall Street Journal; provided that if the date in
question is not a Business Day, the fair market value shall be determined as of
the last Business Day immediately prior to such date.
(e) Notwithstanding the provisions of subsection (c) hereof, in the
event that a grant would cause the number of Shares granted to exceed the number
of Shares reserved for issuance hereunder, then each such automatic grant shall
be for that number of Shares determined by dividing the total number of Shares
remaining available for grant by the number of Eligible Directors on such Date
of Grant. Any further grants shall then be deferred until such time, if any, as
additional Shares become
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available for grant under the Plan through action of the shareholders to
increase the number of Shares which may be issued under the Plan.
(f) The Shares granted to each Eligible Director shall be fully vested
on the Date of Grant.
(g) On the first Date of Grant following the Effective Date of the
Plan, each Eligible Director shall be granted Shares (in addition to the Shares
to be granted pursuant to Section 6(c) above) in an amount equal to (i) $12,500
multiplied by a fraction, (A) the numerator of which is the number of days from
the most recent anniversary of the date such Eligible Director became a director
(or, in the case of an Eligible Director who has been a director for less than
one year, the date such Eligible Director became a director) to the first day of
the calendar quarter in which such Date of Grant occurs and (B) the denominator
of which is 365, (ii) divided by the fair market value per Share as of such Date
of Grant.
7. TERM OF PLAN.
The Plan shall become effective upon adoption by the Board and approval
by the shareholders of the Company. The Plan shall continue in effect for a term
of ten (10) years from such date unless sooner terminated under Section 10 of
the Plan.
8. SHAREHOLDER APPROVAL.
The Plan shall be approved either (i) by the affirmative vote of the
holders of a majority of the Company's securities present or represented and
entitled to vote at a meeting duly held in accordance with applicable state law
or (ii) by the written consent of the holders of a majority of the Company's
securities entitled to vote. Such approval shall be solicited substantially in
accordance with Section 14(a) of the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Subject to any required action by shareholders of the Company, the
number of shares of Common Stock reserved for issuance under the Plan shall be
proportionately adjusted if any recapitalization, reclassification, stock
dividend, stock split or combination of shares of Common Stock is effected. In
the event of the sale of all or substantially all the assets of the Company or
the merger of the Company with or into another corporation whereby the
shareholders of the Company own less than 50% of the equity securities of the
surviving corporation, each Eligible Director shall receive immediately prior to
the consummation of such action the number of shares proportionately adjusted to
reflect the days served by the Eligible Director since the commencement of the
calendar quarter in which the consummation of such action occurs or, if such
person was not an Eligible Director on the first day of such calendar quarter,
then since the date such Eligible Director became an Eligible Director, and the
date on which the fair market value of the Company's Common Stock
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is determined shall be the first day of such calendar quarter or, in the case of
an Eligible Director who was not an Eligible Director on the first day of such
calendar quarter, then the date on which such Eligible Director became an
Eligible Director.
10. AMENDMENT AND TERMINATION OF THE PLAN.
(a) Amendment and Termination.
The Board may amend, suspend, or terminate the Plan from time
to time in such respects as the Board may deem advisable; provided, however,
that shareholder approval shall be required for any amendment to the Plan which
would: (i) materially increase the benefits to participants under the Plan; (ii)
materially increase the number of Shares issuable under the Plan; or (iii)
materially modify the requirements as to eligibility for participation in the
Plan and provided further, however, that provisions of the Plan setting forth
the amount and price of the Shares to be issued hereunder, the class of persons
eligible to be granted Shares hereunder and the timing of such grants shall not
be amended more than once every six months, other than to comport with changes
in the Internal Revenue Code, the Employee Retirement Income Security Act, if
applicable, or the rules and regulations promulgated thereunder.
(b) Effect of Amendment or Termination.
Any such amendment or termination of the Plan shall not affect
Shares already issued.
11. COMPLIANCE WITH LAWS AND REGULATIONS.
Shares shall not be issued under this Plan unless the issuance and
delivery of such Shares shall comply with all relevant provisions of law,
including without limitation the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, state securities laws and the
requirements of any stock exchange upon which Shares may then be listed.
12. RESERVATION OF SHARES.
The Company, during the term of the Plan, will at all times reserve and
keep available such number of Shares as is reserved for the Plan pursuant to
Section 3 hereof.
13. GOVERNING LAW.
The Plan shall be governed by the laws of the State of California.
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EXHIBIT 5.1
August 29, 1997
Power Spectra, Inc.
919 Hermosa Avenue
Sunnyvale, California 94086
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined (i) the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Power Spectra, Inc., a California
corporation (the "Company" or "you"), with the Securities and Exchange
Commission on or about August 29, 1997 in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), of an aggregate of 300,000
shares (the "Shares") of your Common Stock (the "Common Stock"), reserved for
issuance under the Company's 1991 Director Stock Plan (the "Stock Plan") and
(ii) the Prospectus to be dated on or about August 29, 1997 that relates to the
Stock Plan and to such Registration Statement pursuant to Rule 428(a)(1)
promulgated under the Act (the "Prospectuses"). As your legal counsel, we have
reviewed the actions proposed to be taken by you in connection with the proposed
sale and issuance of the Shares by the Company under the Stock Plan.
With respect to the Shares, it is our opinion that, upon completion of
the actions being taken, or contemplated by us as your counsel to be taken, by
you prior to the issuance of the Shares pursuant to the Registration Statement,
the Prospectus and the Stock Plan, such shares will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, the Prospectus and any subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
EXHIBIT 23.1
Consent of Independent Certified Public Accountants
We have issued our report dated February 21, 1997 (except for Note 10 as to
which the date is April 10, 1997), accompanying the financial statements
included in the Annual Report of Power Spectra, Inc. on Form 10-K for the year
ended December 31, 1996. We hereby consent to the incorporation by reference of
said report in the Registration Statement of Power Spectra, Inc. on Form S-8.
/s/ GRANT THORNTON L.L.P.
San Jose, California
August 29, 1997
EXHIBIT 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
pertaining to the 1991 Director Stock Plan of Power Spectra, Inc. of our report
dated February 17, 1995 (except Note 3 as to which the date is April 7, 1995),
with respect to the financial statements of Power Spectra, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Jose, California
August 26, 1997
