<PAGE>
As filed with the Securities and Exchange Commission on September 29, 1999.
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
S3 INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 77-0204341
______________________________ ______________________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2841 Mission College Boulevard
Santa Clara, California 95054
______________________________ ______________________________
(Address of Principal (Zip Code)
Executive Offices)
The Diamond Multimedia Systems, Inc. 1992 Stock Option Plan,
The Diamond Multimedia Systems, Inc. 1994 Stock Option Plan,
The Diamond Multimedia Systems, Inc. 1995 Director Option Plan,
The Diamond Multimedia Systems, Inc. 1995 Employee Stock Purchase Plan
The Diamond Multimedia Systems, Inc. 1998 Nonstatutory Stock Option Plan, and
The Diamond Multimedia Systems, Inc. 1998 Stock Option Plan
__________________________________________________
(Full title of the plan)
Copy to:
KENNETH F. POTASHNER JORGE A. DEL CALVO
President and Chief Executive Officer KAREN A. DEMPSEY
S3 Incorporated Pillsbury Madison & Sutro LLP
2801 Mission College Boulevard P.O. Box 7880
Santa Clara, California 95052 San Francisco, CA 94120
(408) 980-5400 (415) 983-1000
______________________________ ______________________________
(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
_______________________________________________________________________________________________________________________________
Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered per Share(1) Offering Price(1) Fee
________________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock (1) 6,871,070 $9.25 $63,557,397 $17,668.96
________________________________________________________________________________________________________________________________
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) on the basis of the average of the high and low
prices as reported on the Nasdaq National Market on September 24, 1999.
(2) Associated with the Common Stock are preferred stock purchase rights that
will not be exercisable or be evidenced separately from the Common Stock
prior to the occurrence of certain events.
_________________
The Registration Statement shall become effective upon filing in accordance
with Rule 462 under the Securities Act of 1933.
________________________________________________________________________________________________________________________________
</FN>
</TABLE>
<PAGE>
This Registration Statement on Form S-8 is filed by S3 Incorporated (the
"Registrant") and relates to the 6,871,070 shares of its common stock, par value
$.0001 per share issuable pursuant to the Diamond Multimedia Systems, Inc.
("Diamond Multimedia") 1992 Stock Option Plan, 1994 Stock Option Plan, 1995
Director Option Plan, 1995 Employee Stock Purchase Plan, 1998 Nonstatutory Stock
Option Plan and 1998 Stock Option Plan. These Plans were assumed by the
Registrant in connection with the Agreement and Plan of Merger, dated June 22,
1999, as amended, between the Registrant, Diamond Multimedia and a wholly owned
subsidiary of the Registrant, pursuant to which Diamond Multimedia became a
wholly owned subsidiary of the Registrant.
PART I: INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents previously filed by the Registrant with the
Securities and Exchange Commission are incorporated by reference in this
Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(2) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31 and June 30, 1999;
(3) The Registrant's Current Report on Form 8-K dated June 25, 1999;
(4) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 8-A filed on January 21, 1993, as
amended by the Registration Statement on Form 8-A/A filed on September 28, 1999;
and
(5) The description of the Registrant's Series A Participating Preferred
Stock Purchase Rights contained in the Registrant's Registration Statement on
From 8-A filed on May 20, 1997, as amended by the Registration Statement on Form
8-A/A filed on September 28, 1999.
In addition, all documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 in this registration
statement and to be a part hereof from the date of filing of such documents.
-1-
<PAGE>
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
A partner of Pillsbury Madison & Sutro LLP holds an option to purchase
16,000 shares of the Registrant's common stock. Pillsbury Madison & Sutro LLP
will pass upon certain legal matters with respect to the validity of the
Registrant's common stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, and other corporate
agents in terms sufficiently broad to indemnify such persons under certain
circumstances for liabilities (including reimbursement for expenses incurred)
arising under the Securities Act of 1933, as amended. Article VII of the
Registrant's Restated Certificate of Incorporation and Article V of the
Registrant's Bylaws provide for indemnification of the Registrant's directors,
officers, employees and other agents to the extent and under the circumstances
permitted by the General Corporation Law of the State of Delaware. The
Registrant has also entered into agreements with its directors and officers that
will require the Registrant, among other things, to indemnify them against
certain liabilities that may arise by reason of their status or service as
directors or officers to the fullest extent not prohibited by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits
Exhibit
- -------
Number Exhibit
- ------ -------
5.1 Opinion regarding legality of securities to be offered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of PricewaterhouseCoopers, Independent Auditors.
23.4 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
99.1 Diamond Multimedia Systems, Inc. 1992 Stock Option Plan (1).
99.2 Diamond Multimedia Systems, Inc. 1994 Stock Option Plan (2).
99.3 Diamond Multimedia Systems, Inc. 1995 Director Option Plan (3).
99.4 Diamond Multimedia Systems, Inc. 1998 Nonstatutory Stock Option
Plan (4).
99.5 Diamond Multimedia Systems, Inc. 1998 Stock Option Plan (5).
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<PAGE>
99.6 Diamond Multimedia Systems, Inc. 1995 Employee Stock Purchase Plan. (6)
_________________
(1) Incorporated by reference to Exhibit 10.4 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-49151) filed on April 1,
1998.
(2) Incorporated by reference to Exhibit 10.4 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-08351) filed on July 18,
1996.
(3) Incorporated by reference to Exhibit 10.3 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-85765) filed on August 23,
1999.
(4) Incorporated by reference to Exhibit 10.1 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-85765) filed on August 23,
1999.
(5) Incorporated by reference to Exhibit 10.4 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-61147) filed on August 11,
1998.
(6) Incorporated by reference to Exhibit 10.1 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-61147) filed on August 11,
1998.
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;
(2) That, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnifi-cation 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 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
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 Santa Clara, State of California, on September 28,
1999.
S3 INCORPORATED
By /s/ KENNETH F. POTASHNER
-----------------------------------
Kenneth F. Potashner
President and
Chief Executive Officer
(Pricipal Executive Officer)
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Kenneth F. Potashner and Walter D. Amaral, and
each of them his or her true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto 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, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
/S/ KENNETH F. POTASHNER President and Chief Executive Officer September 28,1999
------------------------- (Principal Executive Officer) and
Kenneth F. Potashner Chairman of the Board
/S/ WALTER D. AMARAL Senior Vice President and Chief September 28,1999
------------------------- Financial Officer (Principal Financial
Walter D. Amaral and Accounting Officer)
------------------------- Director September __,1999
Terry N. Holdt
</TABLE>
-4-
<PAGE>
<TABLE>
<S> <C> <C>
/S/ WILLIAM J. SCHOEDER Director September 28,1999
-------------------------
William J. Schroeder
Director September __,1999
-------------------------
Gregorio Reyes
/S/ JAMES T. SCHRAITH Director September 24,1999
-------------------------
James T. Schraith
/S/ CARMELO J. SANTORO Director September 28,1999
-------------------------
Carmelo J. Santoro
/S/ ROBERT P. LEE Director September 28, 1999
-------------------------
Robert P. Lee
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit
- -------
Number Exhibit
- ------ -------
5.1 Opinion regarding legality of securities to be offered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Deloitte & Touche LLP, Independent Auditors.
23.3 Consent of PricewaterhouseCoopers, Independent Auditors.
23.4 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1).
99.1 Diamond Multimedia Systems, Inc. 1992 Stock Option Plan (1).
99.2 Diamond Multimedia Systems, Inc. 1994 Stock Option Plan (2).
99.3 Diamond Multimedia Systems, Inc. 1995 Director Option Plan (3).
99.4 Diamond Multimedia Systems, Inc. 1998 Nonstatutory Stock Option Plan (4).
99.5 Diamond Multimedia Systems, Inc. 1998 Stock Option Plan (5).
99.6 Diamond Multimedia Systems, Inc. 1995 Employee Stock Purchase Plan. (6)
_________________
(1) Incorporated by reference to Exhibit 10.4 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-49151) filed on April 1,
1998.
(2) Incorporated by reference to Exhibit 10.4 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-08351) filed on July 18,
1996.
(3) Incorporated by reference to Exhibit 10.3 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-85765) filed on August 23,
1999.
(4) Incorporated by reference to Exhibit 10.1 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-85765) filed on August 23,
1999.
(5) Incorporated by reference to Exhibit 10.4 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-61147) filed on August 11,
1998.
(6) Incorporated by reference to Exhibit 10.1 of the Diamond Multimedia Systems,
Inc. Registration Statement on Form S-8 (File No. 333-61147) filed on August 11,
1998.
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<PAGE>
EXHIBIT 5.1
PILLSBURY MADISON & SUTRO LLP
235 Montgomery Street
San Francisco, CA 94104
Tel: (415) 983-1000
September 28, 1999
S3 Incorporated
2801 Mission College Boulevard
Santa Clara, CA 95052
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by S3
Incorporated, a Delaware corporation (the "Company"), with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
6,871,070 shares of the Company's Common Stock issuable pursuant to the Diamond
Multimedia Systems, Inc. 1992 Stock Option Plan, 1994 Stock Option Plan, 1995
Director Option Plan, 1995 Employee Stock Purchase Plan, 1998 Nonstatutory Stock
Option Plan and 1998 Stock Option Plan (the "Plans"), it is our opinion that
such shares of the Common Stock of the Company, when issued and sold in
accordance with the Plans, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Pillsbury Madison & Sutro LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1992 Stock Option Plan, the 1994 Stock Option Plan, the
1995 Director Option Plan, the 1995 Employee Stock Purchase Plan, the 1998
Nonstatutory Stock Option Plan, and the 1998 Stock Option Plan of Diamond
Multimedia Systems, Inc. of our report dated January 21, 1999, with respect to
the consolidated financial statements and schedule of S3 Incorporated included
in the Annual Report (Form 10-K) for the year ended December 31, 1998, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
------------------------------
Ernst & Young LLP
San Jose, California
September 27, 1999
<PAGE>
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
S3 Incorporated on Form S-8 of our report dated January 23, 1998 on the
consolidated financial statements for the years ended December 31, 1997 and
1996 appearing in the Annual Report on Form 10-K of S3 Incorporated for the
year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
------------------------------
Deloitte & Touche LLP
San Jose, California
September 28, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF PRICEWATERHOUSECOOPERS, INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 of S3 Incorporated of our report dated January 22, 1999,
appearing in its Annual Report on Form 10-K for the years ended December 31,
1998 and 1997.
/s/ PRICEWATERHOUSECOOPERS
------------------------------
PricewaterhouseCoopers
Hsinchu, Taiwan R.O.C.
September 27, 1999
