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As Filed With the Securities and Exchange Commission on June 30, 1997
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
DISC, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0126925
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
372 TURQUOISE STREET, MILPITAS, CALIFORNIA 95035
(Address of Principal Executive Offices) (Zip Code)
------------------------------
CONSULTING SERVICES AGREEMENTS
(Full Title of the Plans)
------------------------------
J. Richard Ellis, President and Chief Executive Officer
372 Turquoise Street, Milpitas, California 95035
(Name and address of agent for service)
(408) 934-7000
(Telephone number, including area code, of agent for service)
Copy to:
K.C. Schaaf, Esq.
Jeffrey B. Coyne, Esq.
Stradling, Yocca, Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================
Title of Securities Amount To Be Proposed Maximum Proposed Maximum Amount of
To Be Registered Registered Offering Aggregate Offering Registration Fee
Price Per Share Price (1)
==================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
no par value 46,161 shares $3.375(1) $155,793(1) $47.21
==================================================================================================
</TABLE>
(1) The aggregate offering price for 46,161 shares of Common Stock
registered hereby, which are to be offered to the Registrant's
consultants pursuant to the Plan, is estimated solely for the purpose
of calculating the registration fee, in accordance with Rule
457(h)(1), on the basis of the price of securities of the same class
as determined in accordance with Rule 457(c), using the average of the
closing bid and asked price of the Common Stock of the Registrant on
Nasdaq Small Cap on June 25, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, containing its financial statements for its fiscal year
ended December 31, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
(c) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the Annual Report referred to
in (a) above.
(d) The description of the Registrant's Common Stock that is contained
in the Registrant's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California General Corporation Law makes provision
for the indemnification of officers and directors in terms sufficiently broad to
include indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Act"). The Articles of Incorporation of the Company authorize
the Company to provide indemnification of its officers, directors and agents for
breach of duty to the Company and its shareholders through bylaw provisions or
indemnification agreements, or both, in excess of the indemnification otherwise
permitted by California law, subject to certain limitations.
In addition, as permitted by Section 204(a)(10) of the California
General Corporation Law, the Articles of Incorporation of the Company provide
that a director of the Company shall not be liable to the Company or its
shareholders for monetary damages to the fullest extent permissible under
California law. However, as provided by California law, such limitation of
liability will not act to limit the liability of a director 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 interest 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 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
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an unexcused pattern of inattention that amounts to an abdication of the
director's duty to the Company or its shareholders, (vi) any improper
transactions between a director and the Company in which the director has a
material financial interest or (vii) any unlawful distributions to the
shareholders of the Company or any unlawful loan of money or property to, or a
guarantee of the obligation of, any director or officer of the Company.
In addition, the Company has entered into separate Indemnification
Agreements with each of its directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Number Description
4.1 Consulting Services Agreement with John W. Meadows
4.2 Consulting Services Agreement with David J. Kalstrom
5 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5).
23.2 Consent of Price Waterhouse LLP, independent accountants.
24 Power of Attorney (included on signature page to the
Registration Statement at page S-1).
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 this 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)
shall not apply if the information required to be included in a post-effective
amendment by these paragraphs is contained in periodic reports filed by
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the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in this 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.
(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.
(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 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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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 Milpitas, State of California, on the 27th day of
June, 1997.
DISC, INC.
By: /s/ J. Richard Ellis
----------------------------------
J. Richard Ellis
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
We, the undersigned officers and directors of DISC, Inc., do hereby
constitute and appoint J. Richard Ellis and Henry Madrid, or either of them, our
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 and all 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, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ J. Richard Ellis President, Chief Executive Officer and June 27, 1997
- --------------------------- Chairman of the Board (Principal Executive
J. Richard Ellis Officer)
/s/ Henry Madrid Vice President of Finance and Chief June 27, 1997
- --------------------------- Financial Officer (Principal Financial and
Henry Madrid Accounting Officer)
/s/ Frank T. Connors Director June 27, 1997
- ---------------------------
Frank T. Connors
/s/ F. Rigdon Currie Director June 27, 1997
- ---------------------------
F. Rigdon Currie
/s/ Michael D. Kaufman Director June 27, 1997
- ---------------------------
Michael D. Kaufman
/s/ Arch J. McGill Director June 27, 1997
- ---------------------------
Arch J. McGill
/s/ Michael A. McManus, Jr. Director June 27, 1997
- ---------------------------
Michael A. McManus, Jr.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C>
4.1 Consulting Services Agreement with John W. Meadows 7
4.2 Consulting Services Agreement with David J. Kalstrom 8
5 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant. 9
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5). N/A
23.2 Consent of Price Waterhouse LLP, independent accountants. 10
24 Power of Attorney (included on signature page to the Registration
Statement at page S-1). N/A
</TABLE>
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EXHIBIT 4.1
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made this 19th day
of May, 1997, between John W. Meadows ("Meadows") and DISC, Inc., a California
corporation ("DISC"), who agree as follows:
1. CONSULTING. DISC shall engage Meadows as a marketing consultant and
Meadows shall serve DISC in such capacity, upon the terms hereinafter set forth.
2. COMPENSATION. As compensation for Meadows' services as a consultant,
DISC shall issue to Meadows, on June 30, 1997, 42,661 shares of DISC's common
stock.
3. CONFIDENTIALITY. For a period of two years following termination of
Meadows' consulting services, Meadows shall refrain from directly or indirectly,
for his own account or as agent, servant, employee or member of any firm (a)
disclosing to any other person or entity any confidential information or trade
secrets of DISC, without DISC's written consent, and (b) engaging, hiring,
employing or soliciting the employment of any of DISC's then employees or of the
then employees of any of DISC's affiliates or subsidiaries.
4. MISCELLANEOUS PROVISIONS.
(a) Assignment. The performance of Meadows contemplated
hereunder is personal in nature and, accordingly, neither this Agreement nor any
part thereof may be assigned by either party hereto. Except as otherwise
provided herein, this Agreement is binding upon and shall inure to the benefit
of the parties hereto and their respective successors, assigns, heirs and
personal representatives and, in the case of DISC, any successor by operation of
law or otherwise.
(b) Governing Law. The validity of this Agreement, the
construction of its terms and the determination of the rights and duties of the
parties hereto shall all be governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date and year first above written.
DISC, INC.,
a California corporation
By: /s/ J. Richard Ellis
-----------------------------
J. Richard Ellis, President
/s/ John W. Meadows
-----------------------------
John W. Meadows
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EXHIBIT 4.2
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is made this 30th day
of May, 1997, between David J. Kalstrom ("Kalstrom") and DISC, Inc., a
California corporation ("DISC"), who agree as follows:
1. CONSULTING. DISC shall engage Kalstrom as a marketing consultant and
Kalstrom shall serve DISC in such capacity, upon the terms hereinafter set
forth.
2. COMPENSATION. As compensation for Kalstrom's services as a
consultant, DISC shall issue to Kalstrom, on June 30, 1997, 3,500 shares of
DISC's common stock.
3. CONFIDENTIALITY. For a period of two years following termination of
Kalstrom's consulting services, Kalstrom shall refrain from directly or
indirectly, for his own account or as agent, servant, employee or member of any
firm (a) disclosing to any other person or entity any confidential information
or trade secrets of DISC, without DISC's written consent, and (b) engaging,
hiring, employing or soliciting the employment of any of DISC's then employees
or of the then employees of any of DISC's affiliates or subsidiaries.
4. MISCELLANEOUS PROVISIONS.
(a) Assignment. The performance of Kalstrom contemplated
hereunder is personal in nature and, accordingly, neither this Agreement nor any
part thereof may be assigned by either party hereto. Except as otherwise
provided herein, this Agreement is binding upon and shall inure to the benefit
of the parties hereto and their respective successors, assigns, heirs and
personal representatives and, in the case of DISC, any successor by operation of
law or otherwise.
(b) Governing Law. The validity of this Agreement, the
construction of its terms and the determination of the rights and duties of the
parties hereto shall all be governed by the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Consulting
Agreement as of the date and year first above written.
DISC, INC.,
a California corporation
By: /s/ J. Richard Ellis
---------------------------
J. Richard Ellis, President
/s/ David J. Kalstrom
---------------------------
David J. Kalstrom
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EXHIBIT 5
[LETTERHEAD OF STRADLING, YOCCA, CARLSON & RAUTH]
June 30, 1997
DISC, Inc.
372 Turquoise Street
Milpitas, California 95035
Registration Statement on Form S-8--Consulting Services Agreements
Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by DISC, Inc., a California
corporation (the "Company"), with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 46,161 shares of the Company's common stock, no par value
("Common Stock"), issuable under Consulting Service Agreements between the
Company and certain consultants (the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the shares of Common
Stock, when issued in accordance with the Plans, 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.
Very truly yours,
/s/ STRADLING, YOCCA, CARLSON & RAUTH
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated April 11, 1997 appearing
on page 39 of Disc, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1996.
/s/ PRICE WATERHOUSE LLP
San Jose, California
June 30, 1997
