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As filed with the Securities and Exchange Commission on December 20, 1996
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
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MTI TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 95-3601802
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
4905 EAST LA PALMA AVENUE
ANAHEIM, CALIFORNIA 92807
(Address of principal executive offices)
1996 STOCK INCENTIVE PLAN
(Full Title of Plan)
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Dale R. Boyd
Vice President, Chief Financial Officer and Secretary
MTI Technology Corporation
4905 East La Palma Avenue
Anaheim, California 92807
(name and address of agent for service)
(714) 970-0300
(telephone number, including area code, of agent for service)
Copy to:
ROBERT M. MATTSON, JR., ESQ.
MORRISON & FOERSTER, LLP
19900 MACARTHUR BOULEVARD
IRVINE, CALIFORNIA 92612
(714) 251-7500
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Amount Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share(1) Price Fee
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001
par value per share 2,250,000 $2.84 $6,390,000 $1,936
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), the proposed maximum offering price per share
and the proposed maximum aggregate offering price have been determined on the
basis of the average bid and ask prices reported on the Nasdaq Stock Market on
December 17, 1996.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plans described herein.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8
(plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by MTI Technology Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended April
6, 1996, which includes audited financial statements for the Registrant's latest
fiscal year.
(b) All other reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year covered by the audited financial statements described in (a)
above.
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A, filed with the Commission on February 15,
1994, including any amendment or report filed for the purposes of updating such
description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 into this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. 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.
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
that they may incur in such capacities, including liabilities under the
Securities Act.
The Registrant's Restated Certificate of Incorporation provides that the
liability of its directors for monetary damages shall be eliminated to the
fullest extent permissible under Delaware law. Pursuant to Delaware law, this
includes elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the
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directors' duty of care and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for: breach of the directors' duty of loyalty to the Registrant; for
acts and omissions not in good faith or involving intentional misconduct; for
knowing violations of law; for any transaction from which the director derived
an improper personal benefit; and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. Neither does
the provision affect a director's responsibilities under any other laws, such
as the federal securities laws, or state or federal environmental laws. In
addition, the Registrant's Bylaws require that the Registrant indemnify its
directors and officers to the fullest extent permitted by Delaware law.
The Registrant has entered into agreements with certain directors and
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts to the fullest extent permitted
by law incurred in connection with any proceeding to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in, or not opposed to, the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Form of Certificate for Common Stock. Incorporated by reference
to Exhibit 4.12 of the Registrant's Annual Report on Form 10-K for the fiscal
year ended April 6, 1996.
4.2 Restated Certificate of Incorporation of Registrant. Incorporated by
reference to Exhibit 3.1 of the Registrant's Annual Report on Form 10-K for the
fiscal year ended April 6, 1996.
4.3 By-Laws of the Registrant. Incorporated by reference to Exhibit
3.2 of the Registrant's Annual Report on Form 10-K for the fiscal year ended
April 6, 1996.
5.1 Opinion of Morrison & Foerster LLP.
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick, LLP.
24.1 Power of Attorney (See page II-5).
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:
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(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 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 this Registration Statement or any
material change to such information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this
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 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 herein, 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) Filings Incorporating Subsequent Exchange Act Documents By Reference.
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 (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) 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 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 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 by a
director, officer or controlling person of the Registrant in the successful
defense or 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, as amended, MTI
Technology Corporation 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 Anaheim, State of California, on
December 19, 1996.
MTI TECHNOLOGY CORPORATION
By: /s/ Earl M. Pearlman
---------------------------------
Earl M. Pearlman
President and Chief Executive Officer
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS EARL M.
PEARLMAN AND DALE R. BOYD, AND EACH OF THEM, AS ATTORNEYS-IN-FACT, EACH WITH
THE POWER OF SUBSTITUTION, FOR HIM IN ANY AND ALL CAPACITIES, TO SIGN ANY
AMENDMENT 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 TO SAID ATTORNEYS-IN-FACT, AND EACH OF THEM, FULL
POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE
AND NECESSARY TO BE DONE IN CONNECTION THEREWITH, AS FULLY TO ALL INTENTS AND
PURPOSES AS HE MIGHT OR COULD DO IN PERSON, HEREBY RATIFYING AND CONFIRMING ALL
THAT SAID ATTORNEYS-IN-FACT OR ANY OF THEM, OR THEIR OR HIS SUBSTITUTE OR
SUBSTITUTES, MAY LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Earl M. Pearlman President December 19, 1996
- -------------------- and Chief Executive Officer
Earl M. Pearlman
/s/ Dale R. Boyd Vice President, December 19, 1996
- -------------------- Chief Financial Officer
Dale R. Boyd and Secretary (Principal
Financial Officer)
- -------------------- Chairman of the Board December __, 1996
Raymond J. Noorda of Directors
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Val Kreidel Director December 19, 1996
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Val Kreidel
/s/ David Proctor Director December 19, 1996
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David Proctor
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit Number Description Page No.
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<S> <C> <C>
4.1 Form of Certificate for Common Stock. Incorporated by reference to
Exhibit 4.12 of the Registrant's Annual Report on Form 10-K for the *
fiscal year ended April 6, 1996.
4.2 Restated Certificate of Incorporation of Registrant. Incorporated by
reference to Exhibit 3.1 of the Registrant's Annual Report on Form 10-K *
for the fiscal year ended April 6, 1996.
4.3 By-Laws of the Registrant. Incorporated by reference to Exhibit 3.2 of
the Registrant's Annual Report on Form 10-K for the fiscal year ended *
April 6, 1996.
5.1 Opinion of Morrison & Foerster LLP. 9
23.1 Consent of Morrison & Foerster LLP (included in Exhibit 5.1). 9
23.2 Consent of KPMG Peat Marwick, LLP. 10
24.1 Power of Attorney (See page II-5). 6-7
</TABLE>
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* Incorporated by reference to the Registrant's Annual Report on Form 10-K for
the fiscal year ended April 6, 1996.
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EXHIBIT 5.1
[MORRISON & FOERSTER LLP LETTERHEAD]
December 20, 1996
MTI Technology Corporation
4905 East La Palma Avenue
Anaheim, CA 92807
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to
be filed with the Securities and Exchange Commission (the "SEC") in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 3,000,000 shares of your common stock (the "Common Shares")
issuable in connection with awards granted pursuant to the 1996 Stock Incentive
Plan ("Plan").
As your counsel in connection with the Registration Statement, we have
examined the proceedings taken by you in connection with the adoption of the
Plan and the authorization of the issuance of the Common Shares or awards
(including options to purchase Common Shares, dividend equivalent rights,
restricted stock, performance units, performance shares and other rights or
benefits) under the Plan (the "Plan Shares") and such documents as we have
deemed necessary to render this opinion. For the purpose of the opinion
rendered below, we have assumed that in connection with issuance of shares under
the Plan, the Company will receive consideration in an amount not less than the
aggregate par value of the Plan Shares covered by each such issuance.
Based upon and subject to the foregoing, it is our opinion that the Plan
Shares, when issued and outstanding pursuant to the terms of the Plan, will be
validly issued, fully paid and nonassessable Common Shares.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Morrison & Foerster LLP
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EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the use of our reports dated May 29, 1996 incorporated herein by
reference.
/s/ KPMG Peat Marwick LLP
Orange County, California
December 20, 1996
