As filed with the Securities and Exchange Commission on July 24, 1998.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------------
SPECTRIAN CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 77-0023003
(State of Incorporation) (I.R.S. Employer
Identification No.)
350 West Java Drive
Sunnyvale, California 94089
(408) 745-5400
(Address and telephone number of Registrant's principal executive offices)
-----------------------------
1998 Employee Stock Purchase Plan
(Full Title of the Plan)
-----------------------------
BRUCE R. WRIGHT
Executive Vice President, Finance and Administration,
Chief Financial Officer and Secretary
Spectrian Corporation
350 West Java Drive
Sunnyvale, California 94089
(408) 745-5400
(Name, address and telephone number of agent for service)
-----------------------------
Copy to:
CHRIS F. FENNELL, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
-----------------------------
================================================================================
<PAGE>
================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share(1) Price(1) Fee
================================================================================
Common Stock, 2,950,000 shares $14.50 $42,775,000 $12,618.63
$.001 per share par
value, to be issued
under the 1998
Employee Stock
Purchase Plan(2)
================================================================================
(1) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee on the basis of the average of the
high and low prices per share for the Common Stock as reported on the
Nasdaq National Market System on July 20, 1998.
(2) Includes Preferred Share Purchase Rights which, prior to the occurrence
of certain events, will not be exercisable or evidenced separately from
the Common Stock.
================================================================================
-2-
<PAGE>
PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (Spectrian Corporation is sometimes referred
to herein as the "Company"):
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended March 31, 1998, filed May 21, 1998 pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's Proxy Statement dated May 28, 1998 relating
to the Company's 1998 Annual Meeting of Shareholders;
(c) The description of the Registrant's Preferred Share
Purchase Rights contained in the Registrant's Registration Statement on
Form 8-A filed January 17, 1997 pursuant to Section 12(g) of the 1934
Act;
(d) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form 8-A filed June 9,
1994 pursuant to Section 12(g) of the 1934 Act; and
(e) The description of the Registrant's Common Stock and
Preferred Stock contained in the Registrant's Current Report on 8-K
filed October 10, 1997 pursuant to Section 13 of the 1934 Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the 1934 Act on or after the date of this Registration Statement
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 in this
Registration Statement 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.
Item 6. Indemnification of Directors and Officers.
The Registrant's Certificate of Incorporation limits the
liability of directors to the maximum extent permitted by Delaware law. Delaware
law provides that directors of a corporation will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except for
liability (i) for any breach of their duty of loyalty to the corporation or its
stockholders, (ii)
-3-
<PAGE>
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases or redemption as provided in section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall
indemnify its directors and officers and may indemnify its employees and other
agents to the fullest extent permitted by law. The Registrant believes that
indemnification under its Bylaws covers at least negligence and gross negligence
on the part of indemnified parties. The Registrant's Bylaws also permit the
Registrant to secure insurance on behalf of any officer, director, and employee
or other agents for any liability arising out of his or her actions in such
capacity, regardless of whether the Registrant would have the power to indemnify
him or her against such liability under the General Corporation Law of Delaware.
The Registrant currently has secured such insurance on behalf of its officers
and directors.
The Registrant has entered into agreements to indemnify its
directors and officers, in addition to indemnification provided for in the
Registrant's Bylaws. Subject to certain conditions, these agreements, among
other things, indemnify the Registrant's directors and officers for certain
expenses (including attorney's fees), judgments, fines and settlement amounts
incurred by any such person in any action or proceeding, including any action by
or in the right of the Registrant, arising out of such person's services as a
director or officer of the Registrant, any subsidiary of the Registrant or any
other company or enterprise to which the person provides services at the request
of the Registrant.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Exhibit
Number Documents
------ ---------------------------------------------------------------
4.1* 1998 Employee Stock Purchase Plan
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page 7)
- ----------------
* Incorporated by reference to the Exhibits filed with the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 1998 as
filed with the Securities and Exchange Commission on May 21, 1998.
-4-
<PAGE>
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 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. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, (the "Securities Act") each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 Company pursuant to the Delaware General Corporation Law, the
Certificate of Incorporation of the Company, the Bylaws of the Company,
indemnification agreements entered into between the Company and its officers and
directors or otherwise, the Company 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 Company in successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered hereunder, the Company 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 of 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.
-5-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Spectrian Corporation, a corporation organized and existing under
the laws of the State of Delaware, 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 this 24th day of July 1998.
SPECTRIAN CORPORATION
By: /s/ Bruce R. Wright
---------------------------------------------
Bruce R. Wright
Executive Vice President, Finance and
Administration, Chief Financial Officer and
Secretary (Principal Financial and Accounting
Officer)
-6-
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Garrett A. Garrettson and Bruce R.
Wright, jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
<TABLE>
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
- -------------------------------------------- -------------------------------------------------- -----------------
<S> <C> <C>
/s/ Garrett A. Garrettson President, Chief Executive Officer July 24, 1998
- ----------------------------------- and Director (Principal Executive
(Garrett A. Garrettson) Officer)
Executive Vice President, Finance July 24, 1998
/s/ Bruce R. Wright and Administration, Chief Financial
- ----------------------------------- Officer and Secretary (Principal
(Bruce R. Wright) Financial and Accounting Officer)
/s/ James a. Cole Director July 24, 1998
- -----------------------------------
(James A. Cole)
/s/ Martin Cooper Director July 24, 1998
- -----------------------------------
(Martin Cooper)
/s/ Charles Kissner Director July 24, 1998
- -----------------------------------
(Charles Kissner)
/s/ Robert C. Wilson Director July 24, 1998
- -----------------------------------
(Robert C. Wilson)
/s/ Eric A. Young Director July 24, 1998
- -----------------------------------
(Eric A. Young)
</TABLE>
-7-
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------------
EXHIBITS
-----------------------------------
Registration Statement on Form S-8
SPECTRIAN CORPORATION
July 24, 1998
<PAGE>
<TABLE>
SPECTRIAN CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
<CAPTION>
Exhibit
Number Documents Page
------ ---------------------------------------------------------------- ------------
<S> <C>
4.1* 1998 Employee Stock Purchase Plan
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (contained in page 7)
<FN>
- -----------------
* Incorporated by reference to the Exhibits filed with the Company's
Annual Report on Form 10-K for the fiscal year ended March 31, 1998 as
filed with the Securities and Exchange Commission on May 21, 1998.
</FN>
</TABLE>
Exhibit 5.1
-----------
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
July 24, 1998
Spectrian Corporation
350 West Java Drive
Sunnyvale, California 94089
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about July 24, 1998, in
connection with the registration under the Securities Act of 1933, as amended,
of shares of your Common Stock (the "Shares") reserved for issuance under the
1998 Employee Stock Purchase Plan (the "Plan").
As your legal counsel, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares. It is our opinion that the Shares, when issued
and sold in the manner referred to in the Plan, will be legally and validly
issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to said
Registration Statement and further consent to the use of our name wherever
appearing in said Registration Statement and any amendments thereto.
Sincerely,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
Spectrian Corporation:
We consent to incorporation herein by reference of our reports dated April 22,
1998, relating to the consolidated balance sheets of Spectrian Corporation and
subsidiaries as of March 31, 1998 and 1997, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
years in the three-year period ended March 31, 1998, and the related schedule,
which reports appear or are incorporated by reference in the March 31, 1998,
annual report on Form 10-K of Spectrian Corporation.
/s/ KPMG Peat Marwick LLP
Mountain View, California
July 22, 1998
