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REGISTRATION NO. 333-____________________, FILED NOVEMBER 12, 1997
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AUREAL SEMICONDUCTOR INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-3117385
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
4245 TECHNOLOGY DRIVE
FREMONT, CA 94538
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(Address of principal executive offices) (Zip code)
AUREAL SEMICONDUCTOR INC.
1996 OUTSIDE DIRECTORS STOCK OPTION PLAN
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(Full title of the plan)
DAVID J. DOMEIER
VICE PRESIDENT, FINANCE AND
CHIEF FINANCIAL OFFICER
AUREAL SEMICONDUCTOR INC.
4245 TECHNOLOGY DRIVE
FREMONT, CA 94538
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 510/252-4245
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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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed
offering price maximum
Title of securities Amount to be per aggregate Amount of
to be registered(1) registered share(2) offering price(2) registration fee
- ------------------- ---------- -------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock Par 30,000 $ 1.9375 $ 58,125
Value $0.001 170,000 $ 2.5155 $ 427,635
TOTAL 200,000 $ 485,760 $ 147.20
</TABLE>
- --------
(1) The securities to be registered are Common Stock, which include options
and rights to acquire such Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the Plan, the price computed is the exercise price. As to
the remaining shares under the Plan, the price is based upon the average
of the bid and asked price per share of the Common Stock on November 6,
1997, as reported on the NASDAQ OTC Bulletin Board.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Aureal Semiconductor 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 Section 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.
(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.
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
The shares of Common Stock to be offered are registered under
Section 12 of the Exchange Act, pursuant to the Company's 1996 Outside Director
Stock Option Plan.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While the
relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, illegal payment of dividends and approval of any transaction
from which a director derives an improper personal benefit.
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The Company has adopted provisions in its Certificate of
Incorporation which eliminate the personal liability of its directors to the
Company and its stockholders for monetary damages for breach or alleged breach
of their duty of care. The By-Laws of the Company provide for indemnification of
its directors, officers, employees and agents to the full extent permitted by
the General Corporation Law of the State of Delaware, the Company's state of
incorporation, including those circumstances in which indemnification would
otherwise be discretionary under Delaware Law. Section 145 of the General
Corporation Law of the State of Delaware provides for indemnification in terms
sufficiently broad to indemnify such individuals, under certain circumstances,
for liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933, as amended.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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
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.
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(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 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
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 statement on Form S-8
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 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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SIGNATURE
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
November 10, 1997.
Aureal Semiconductor Inc.
By: /s/ David J. Domeier
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David J. Domeier, Vice President,
Finance and Chief Financial Officer
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POWER OF ATTORNEY
The officers and directors of Aureal Semiconductor Inc. whose signatures
appear below, hereby constitute and appoint Kenneth A. Kokinakis and David J.
Domeier, 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 November 10,
1997.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ Kenneth A. Kokinakis
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Kenneth A. Kokinakis President, Chief Executive Officer and
Director (Principal Executive Officer)
/s/ David J. Domeier
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David J. Domeier Vice President, Finance, Chief Financial
Officer and Chief Accounting Officer
(Principal Financial and Accounting Officer)
/s/ Brendan R. O'Flaherty
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Brendan R. O'Flaherty Vice President, Business Development,
Secretary and General Counsel
/s/ L. William Krause
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L. William Krause Director
/s/ D. Richard Masson
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D. Richard Masson Director
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Richard E. Christopher Director
/s/ Thomas K. Smith, Jr.
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Thomas K. Smith, Jr. Director
</TABLE>
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EXHIBIT INDEX
4.1 Second Amended and Restated Certificate of Incorporation of the
Company is incorporated by reference to Exhibit 4.1 to the
Company's Form S-8 filed on August 2, 1996 (File No. 333-09531)
4.2 Restated Bylaws of the Company (incorporated by reference to
Exhibit 3.2 to the Company's Form 10-Q for the quarter ended
September 29, 1996, filed with the Securities and Exchange
Commission on November 12, 1996)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included in signature pages to this
registration statement)
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EXHIBIT 5
[Letterhead of Gray Cary Ware & Freidenrich, A Professional Corporation]
November 11, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Aureal Semiconductor Inc., a Delaware corporation
(the "Company"), we are rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to 200,000
shares of the Common Stock, $0.001 par value, of the Company which may be issued
pursuant to the exercise of options granted under the Aureal Semiconductor Inc.
1996 Outside Director Stock Option Plan (the "Plan").
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, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
Based on such examination, we are of the opinion that the 200,000 shares
of Common Stock which may be issued upon exercise of options granted under the
Plan are duly authorized shares of the Company's Common Stock, and, when issued
against receipt of the consideration therefor in accordance with the provisions
of the Plan, will be validly issued, fully paid and nonassessable. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above 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 PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 28, 1997,
included in Aureal Semiconductor Inc.'s Form 10-K for the year ended December
29, 1996, and to all references to our firm included in this registration
statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
November 10, 1997
