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As filed with the Securities and Exchange Commission on April 18, 2000
Registration No. 333 - ___________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AVANT! CORPORATION
(Exact Name of Registrant as Specified on Its Charter)
Delaware 94-3133226
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
46871 Bayside Parkway
Fremont, CA 94538
(Address of Principal Executive Offices and Zip Code)
--------------------------
1995 STOCK OPTION/STOCK ISSUANCE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of plans)
Gerald C. Hsu
President and Chief Executive Officer
46871 Bayside Parkway
Fremont, CA 94538
(510) 413-8000
(Name and Address, and Telephone Number,
Including Area Code, of Agent For Service)
---------------------
Copy to:
Susan Thorner, Esq.
Phyllis Solomon, Esq.
Farella Braun & Martel LLP
235 Montgomery Street
San Francisco, CA 94104-3159
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Calculation of Registration Fee
<TABLE>
<CAPTION>
- ---------------------------------------- ------------------ ------------------- -------------------- -------------------
Title of securities to be registered Amount to be Proposed Proposed maximum Amount of
registered(1) maximum offering aggregate offering registration fee(3)
price per share(2) price(2)
- ---------------------------------------- ------------------ ------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
1995 STOCK OPTION/STOCK ISSUANCE PLAN 500,000 shares
Common Stock (par value $.001)
EMPLOYEE STOCK PURCHASE PLAN 500,000 shares
Common Stock (par value $.001)
$11.25 $11,125,000 $2,937
- ---------------------------------------- ------------------ ------------------- -------------------- -------------------
</TABLE>
(1) Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar
transactions.
(2) Estimated pursuant to Rule 457(h) solely for purposes of determining
the registration fee of $2,937, which represents the average of the
high and low prices of the Common Stock reported on the Nasdaq Stock
Market on April 13, 2000.
(3) Calculated pursuant to Rule 457(c) on the basis of the average of the
high and low prices of the Common Stock reported on the Nasdaq Stock
Market on April 13, 2000.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Registration
Statement the following documents:
a. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
b. All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "1934
Act") since December 31, 1999; and
c. The description of the Company's capital stock contained in
the Company's Registration Statement No. 0-25864 on Form 8-A
filed with the Securities and Exchange Commission (the
"Commission") on April 12, 1995 pursuant to Section 12 of the
1934 Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the 1934 Act 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, also shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of the 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
Section 145 of the Delaware General Corporation Law authorizes a
court to award or a corporation's Board of Directors to grant indemnification
to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of
1933, as amended (the "1933 Act"). The Company's Bylaws provide for
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. The
Company's Certificate of Incorporation provides that, pursuant to Delaware
law, its directors shall not be liable for monetary damages for breach of
their fiduciary duty as directors to the Company and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the
fiduciary duty of the directors, 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 director's duty of loyalty to the
Company for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for actions leading to improper
personal benefit to the director and for payment of dividends or approval of
stock repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental
laws. The Company has entered into Indemnification Agreements with its
officers and directors. The Indemnification Agreements provide the Company's
officers and directors with further indemnification to the maximum extent
permitted by the Delaware General Corporation Law.
The Company also maintains insurance policies which insure the
directors and officers of the Company against certain liabilities including
claims arising out of alleged wrongful acts by such persons in their respective
capacities as directors and officers of the Company, subject to certain
exceptions.
3
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS.
3.1 Restated Certificate of Incorporation of the
Company(1)
3.2 Amended and Restated Bylaws of the Company(2)
4.1 Rights Plan dated September 4, 1998 between the
Registrant and Harris Trust Company of California(3)
5 Opinion and consent of Farella Braun & Martel LLP
regarding the legality of the securities being
registered
23.1 Consent of Independent Auditors
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(1) Incorporated by reference from the Company's Registration Statement
on Form S-1 (File No. 33-91128) as declared effective on June 6, 1995.
(2) Incorporated by reference from the Company's Current Report on Form
8-K filed with the Commission on September 18, 1998.
(3) Incorporated by reference from the Company's Registration Statement
on Form 8-A12G filed with the Commission on September 18, 1998.
4
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23.2 Consent of Farella Braun & Martel LLP (included in
Exhibit 5)
24 Power of attorney (included in signature page hereof)
ITEM 9. UNDERTAKINGS.
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 1933 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 hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 this
Registration Statement;
provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or Section 15(d) of the 1934
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the 1933
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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Company's
Annual Report pursuant to Section
5
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13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to Section 15(d) of the
1934 Act) that is incorporated by reference into this Registration Statement
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.
Insofar as indemnification for liabilities arising under the 1933 Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 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 whether such
indemnification by it is against public policy as expressed in the 1933 Act and
will be governed by the final adjudication of such issue.
6
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and
directors of Avant! Corporation, a Delaware corporation, do hereby constitute
and appoint Gerald C. Hsu and Sam Chang, each individually and without the
others, with full power of substitution and resubstitution, his true and lawful
attorneys-in-fact and agents, each with full power and authority to do any and
all acts and things and to execute any and all instruments which said attorneys
and agents, and either one of them, determine may be necessary or advisable or
required to enable said corporation to comply with the 1933 Act, as amended, and
any rules or regulations or requirements of the Securities and Exchange
Commission in connection with this Registration Statement. Without limiting the
generality of the foregoing power and authority, the powers granted include the
power and authority to sign the names of the undersigned officers and directors
in the capacities indicated below to any and all amendments, both pre-effective
and post-effective, and supplements to this Registration Statement, and to any
and all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents, or
either one of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 the 14th day of April, 2000.
AVANT! CORPORATION
By /s/ Gerald C. Hsu
---------------------------------------
Gerald C. Hsu
President and Chief Executive Officer
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed by the following persons, in the capacities indicated
on the 14th day of April, 2000.
Signature Title
----------- -------
/s/ Gerald C. Hsu President, Chief Executive Officer and
-------------------------- Chairman of the Board of Directors
Gerald C. Hsu (Principal Executive Officer)
7
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/s/ Sam Chang Head of Finance and Treasurer (Principal
-------------------------- Financial Officer and Principal Accounting
Sam Chang Officer)
/s/ Moriyuki Chimura Director
--------------------------
Moriyuki Chimura
/s/ Charles St. Clair Director
--------------------------
Charles St. Clair
/s/ Kenneth Tai Director
--------------------------
Kenneth Tai
/s/ Daniel D. Taylor Director
--------------------------
Daniel D. Taylor
8
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<C> <S>
5 Opinion of Farella Braun & Martel LLP
23.1 Consent of Independent Public Accountants
</TABLE>
9
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EXHIBIT 5
April 15, 2000
Avant! Corporation
46871 Bayside Parkway
Fremont, CA 94538
Re: 1995 STOCK OPTION/STOCK ISSUANCE PLAN AND EMPLOYEE STOCK
PURCHASE PLAN (THE "PLANS")
Ladies and Gentlemen:
We represent Avant! Corporation (the "Company") in connection with the
Company's employee benefit plans and related matters. This opinion is furnished
to you in connection with the Registration Statement on Form S-8 (the
"Registration Statement") registering a total of 1,000,000 shares (the "Shares")
of Common Stock of the Company under the Plans.
For purposes of this opinion, we have examined originals or copies
certified or otherwise authenticated to our satisfaction of the following
documents, all of which, unless otherwise indicated, are dated as of the date of
this letter:
1. A certified copy of the Certificate of Incorporation of the
Company, as amended, certified by the Delaware Secretary of
State on March 22, 2000 and certified by the Secretary of the
Company as being complete and in full force and effect.
2. Certain resolutions of the Board of Directors taken at a
meeting on April 11, 1995 and certified by the Secretary of
the Company as being unrescinded, complete and in full force
and effect.
3. Certain resolutions of the Board of Directors taken by
unanimous written consent on April 4, 2000, and certified by
the Secretary of the Company as being unrescinded, complete
and in full force and effect.
4. Certain resolutions of the shareholders of the Company taken
by written consent in May 1995 and certified by the Secretary
of the Company as being unrescinded, complete and in full
force and effect.
5. A certificate of Harris Trust Company of California dated
April 15, 2000.
6. A certificate of Sam Chang, Head of Finance and Treasurer of
the Company dated April 14, 2000.
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Based solely on our examination of the foregoing, we are of the opinion
that, subject to the effectiveness of the Registration Statement, the Shares
will be legally issued, fully paid and non-assessable. In giving this opinion,
we assume that the Shares will be issued in accordance with the terms of the
Plans.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
/s/ FARELLA BRAUN & MARTEL LLP
--------------------------------
FARELLA BRAUN & MARTEL LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors
Avant! Corporation
We consent to incorporation by reference in the registration statement on Form
S-8 of Avant! Corporation of our reports dated January 24, 2000, relating to the
consolidated balance sheets of Avant! Corporation and subsidiaries as of
December 31, 1999 and 1998, and the related consolidated statements of income,
shareholders' equity, and cash flows for each of the years in the three-year
period ended December 31, 1999, and the related consolidated financial statement
schedule, which reports appear in the December 31, 1999 Annual Report on Form
10-K of Avant! Corporation.
/s/ KPMG LLP
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April 14, 2000
Mountain View, California
