As filed with the Securities and Exchange Commission on May 28, 1998
Registration No. 333-00920
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 2
to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ROSS TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
5316 Highway 290 West, Suite 500
Austin, Texas
(Address of Principal Executive Offices)
74-2507960
(I.R.S. Employer
Identification Number)
78735
(Zip Code)
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Stock Option and Restricted Stock Purchase Plan 3.0
(Full title of the Plan)
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JACK W. SIMPSON, SR.
President and Chief Executive Officer
ROSS Technology, Inc.
5316 Highway 290 West, Suite 500
Austin, Texas 78735
(512) 436-2000
(Name, address including zip code and
telephone number, including area code,
of registrants' agent for service)
Copies to:
ANDREW W. GROSS, ESQ.
Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067
(310) 277-1010
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount Offering Price Aggregate Amount of
to be Registered to be Registered(1) Per Unit(2) Offering Price(2) Registration Fee
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Common Stock, par value 2,465,000 shares $0.19 $468,350 $138
$0.01 per share
========================================================================================================================
</TABLE>
(1) Pursuant to Rule 429 of the Securities Act of 1933, as amended (the
"Securities Act"), the prospectus delivered to participants under the
Registrant's Stock Option and Restricted Stock Purchase Plan 3.0 also
relates to an aggregate of 877,054 shares initially registered under this
Registration Statement and an aggregate of 1,925,451 shares registered
pursuant to Amendment No. 1 to this Registration Statement. In addition,
pursuant to Rule 416 of the Securities Act, this Registration Statement
also covers such additional securities as may become issuable to prevent
dilution resulting from stock splits, stock dividends and similar events.
(2) Pursuant to Rule 457(h), estimated solely for the purpose of calculating
the registration fee on the basis of the average of the high and low sale
prices of the Registrant's Common Stock on The Nasdaq Stock Market's
National Market on May 27, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
*Information required by Part I to be contained in the Section 10(a)
prospectus (the "Prospectus") is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act and the Note to Part I of Form
S-8. The Registrant will provide without charge to employees, on the written or
oral request of any such person, a copy of any of the documents constituting the
Prospectus, except for the exhibits to such documents (unless such exhibits are
specifically incorporated by reference into the information that the Prospectus
incorporates). Written requests should be directed to: Francis S. (Kit) Webster
III, Chief Financial Officer, ROSS Technology, Inc., 5316 Highway 290 West,
Suite 500, Austin, Texas 78735. The Registrant's telephone number is (512)
436-2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a), (b), (c), (d), (e), (f), (g) and (h) below are
incorporated by reference in this Registration Statement on Form S-8. In
addition, all documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that 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.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
March 31, 1997, filed pursuant to Section 13 of the Exchange Act;
(b) The Registrant's Quarterly Report on Form 10-Q for the period ended
June 30, 1997, filed pursuant to Section 13 of the Exchange Act;
(c) The Registrant's Quarterly Report on Form 10-Q for the period ended
September 30, 1997, filed pursuant to Section 13 of the Exchange Act
(as amended by the Registrant's Quarterly Report on Form 10-Q/A filed
pursuant to Section 13 of the Exchange Act on November 20, 1997);
(d) The Registrant's Quarterly Report on Form 10-Q for the period ended
December 31, 1997, filed pursuant to Section 13 of the Exchange Act;
(e) The Registrant's Current Report on Form 8-K dated September 19, 1997
filed pursuant to Section 13 of the Exchange Act;
(f) The Registrant's Current Report on Form 8-K dated September 30, 1997
filed pursuant to Section 13 of the Exchange Act;
(g) The Registrant's Current Report on Form 8-K dated April 2, 1998 filed
pursuant to Section 13 of the Exchange Act; and
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(h) The description of the Common Stock contained under the caption
"Description of Capital Stock" in Registrant's Registration Statement
on Form S-1, File No. 33-95878, originally filed with the Commission
on August 21, 1995, including any amendment or report filed for the
purpose of updating such description.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference 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 subsequently filed document which also is
incorporated or deemed to be incorporated herein by reference modifies or
supersedes such prior 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.
As of the date of this Registration Statement, members of the firm Irell &
Manella LLP owned an aggregate of approximately 15,000 shares of Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law empowers a corporation
to indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise (other
than a suit by or in the right of the corporation). In any case, a corporation
may indemnify against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
such action, suit or proceeding if the person indemnified acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no cause to believe his or her conduct was unlawful. In the case
of an action by or in the right of the corporation, no indemnification may be
made in respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine that, despite the adjudication of liability, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to above or in the defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
The Restated Certificate of Incorporation of the Registrant provides, in
effect, that, to the extent and under the circumstances permitted by Section 145
of the Delaware General Corporation Law, the Registrant shall indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit or proceeding of the type described above by reason of the fact that he or
she is or was a director or officer of the Registrant, is or was serving at the
request of the Registrant as a director or officer of another corporation or
enterprise, or was a director or officer of a corporation which was a
predecessor corporation of the Registrant or of another enterprise at the
request of such predecessor corporation. The Restated Certificate of
Incorporation of the Registrant also provides, in effect, that, to the extent
and under the circumstances permitted by Section 145 of the Delaware General
Corporation Law, the Registrant shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that he or she is
or was an employee or agent of the Registrant, is or was serving at the request
of the Registrant as an employee or agent of another corporation or enterprise,
or was an employee or agent of a corporation which was a predecessor corporation
of the Registrant or of another enterprise at the request of such predecessor
corporation.
As permitted by the Delaware General Corporation Law, the Restated
Certificate of Incorporation of the Registrant contains provisions limiting the
personal liability of the Registrant's directors for violations of their
fiduciary duty. Such
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provisions eliminate each director's liability to the Registrant or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) pursuant to Section
174 of the Delaware General Corporation Law providing for liability of directors
for unlawful payment of dividends or unlawful stock purchase or redemptions; or
(iv) for any transaction from which the director derived an improper personal
benefit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Stock Option and Restricted Stock Purchase Plan 3.0 (incorporated by
reference to Registrant's definitive Proxy Statement dated July 18,
1997 for its 1997 Annual Meeting of Stockholders)
4.2 Form of Incentive Stock Option Agreement for options granted during
and after September 1995 through June 24, 1997 (incorporated by
reference to Exhibit 10.25 to Registrant's Registration Statement on
Form S-1, File No. 33-95878)
4.3 Form of Nonqualified Stock Option Agreement for options granted during
and after September 1995 through June 24, 1997 (incorporated by
reference to Exhibit 10.26 to Registrant's Registration Statement on
Form S-1, File No. 33-95878)
4.4 Form of Incentive Stock Option Agreement for options granted from and
after June 24, 1997 (incorporated by reference to Exhibit 4.4 to
Post-Effective Amendment No. 1 to Registration Statement on Form S-8,
File No. 333-00920)
4.5 Form of Nonqualified Stock Option Agreement for options granted from
and after June 24, 1997 (incorporated by reference to Exhibit 4.5 to
Post-Effective Amendment No. 1 to Registration Statement on Form S-8,
File No. 333-00920)
4.6 Specimen of Common Stock Certificate (incorporated by reference to
Exhibit 4.1 to Registrant's Registration Statement on Form S-1, File
No. 33-95878)
4.7 Registrant's Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to Registrant's Registration Statement on
Form S-1, File No. 33-95878)
4.8 Registrant's Restated Bylaws (incorporated by reference to Exhibit 3.2
to Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 29, 1997)
5 Opinion of Irell & Manella LLP as to the legality of the shares of
Common Stock being registered
23.1 Written Consent of KPMG Peat Marwick LLP
23.2 Written Consent of Irell & Manella LLP (included in Exhibit 5)
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:
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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 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) do not
apply if 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 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, 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
this 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities 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 Austin, State of Texas, on May
28, 1998.
ROSS TECHNOLOGY, INC.,
a Delaware corporation
By: /s/Jack W. Simpson, Sr.
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Jack W. Simpson, Sr.
President & Chief Executive Officer
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Pursuant to the requirements of the Securities Act, this Amendment to
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
- --------- ------- ------
/s/ Jack W. Simpson, Sr. Director, President May 28, 1998
- -------------------------- and Chief Executive Officer
Jack W. Simpson, Sr.
/s/ Francis S. (Kit) Webster III Chief Financial Officer May 28, 1998
- -------------------------- and Secretary
Francis S. (Kit) Webster III
/s/ Carter L. Godwin Chief Accounting Officer May 28, 1998
- -------------------------- and Corporate Controller
Carter L. Godwin
/s/ Ryusuke Hoshikawa Director May 28, 1998
- --------------------------
Ryusuke Hoshikawa
/s/ Fred T. May Director May 28, 1998
- --------------------------
Fred T. May
/s/ Masahiro Saida Director May 28, 1998
- --------------------------
Masahiro Saida
/s/ Yasushi Tajiri Director May 28, 1998
- --------------------------
Yasushi Tajiri
/s/ Edward F/ Thompson Director May 28, 1998
- --------------------------
Edward F. Thompson
/s/ Seiichi Yoshikawa Director May 28, 1998
- --------------------------
Seiichi Yoshikawa
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EXHIBIT INDEX
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Exhibit
Number Description
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4.1 Stock Option and Restricted Stock Purchase Plan 3.0 (incorporated
by reference to Registrant's definitive Proxy Statement dated
July 18, 1997 for its 1997 Annual Meeting of Stockholders)
4.2 Form of Incentive Stock Option Agreement for options granted
during and after September 1995 through June 24, 1997
(incorporated by reference to Exhibit 10.25 to Registrant's
Registration Statement on Form S-1, File No. 33-95878)
4.3 Form of Nonqualified Stock Option Agreement for options granted
during and after September 1995 through June 24, 1997
(incorporated by reference to Exhibit 10.26 to Registrant's
Registration Statement on Form S-1, File No. 33-95878)
4.4 Form of Incentive Stock Option Agreement for options granted from
and after June 24, 1997 (incorporated by reference to Exhibit 4.4
to Post-Effective Amendment No. 1 to Registration Statement on
Form S-8, File No. 333-00920)
4.5 Form of Nonqualified Stock Option Agreement for options granted
from and after June 24, 1997 (incorporated by reference to
Exhibit 4.5 to Post-Effective Amendment No. 1 to Registration
Statement on Form S-8, File No. 333-00920)
4.6 Specimen of Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to Registrant's Registration Statement on Form
S-1, File No. 33-95878)
4.7 Registrant's Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 to Registrant's Registration
Statement on Form S-1, File No. 33-95878)
4.8 Registrant's Restated Bylaws (incorporated by reference to
Exhibit 3.2 to Registrant's Quarterly Report on Form 10-Q for the
quarter ended September 29, 1997)
5 Opinion of Irell & Manella LLP as to the legality of the shares
of Common Stock being registered
23.1 Written Consent of KPMG Peat Marwick LLP
23.2 Written Consent of Irell & Manella LLP (included in Exhibit 5)
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Exhibit 5
May 28, 1998
ROSS Technology, Inc.
5316 Highway 290 West, Suite 500
Austin, Texas 78735
Gentlemen and Ladies:
We have acted as counsel in connection with the preparation and filing
of Amendment No. 2 to the Registration Statement on Form S-8 No. 333-00920 (the
"Registration Statement") to be filed by you with the Securities and Exchange
Commission in connection with the registration of 2,465,000 shares of the Common
Stock (the "Common Stock") of ROSS Technology, Inc., a Delaware corporation (the
"Company"), for sale and issuance pursuant to the Company's Stock Option and
Restricted Stock Purchase Plan 3.0 (the "Plan"). As counsel, we have examined
the proceedings proposed to be taken in connection with the Plans and the sale
and issuance of the Common Stock pursuant thereto and such other matters and
documents as we have deemed necessary or relevant as a basis for this opinion.
Based on these examinations, it is our opinion that upon completion of
the proceedings being taken or which we, as your counsel, contemplate will be
taken prior to the sale and issuance of the Common Stock, such Common Stock,
when sold and issued in the manner referred to in the Registration Statement and
the Plan, will be legally issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and any amendment thereto. This opinion is furnished to you in
connection with the registration of the above-described shares, is solely for
your benefit, and may not be relied upon, nor copies delivered to, any other
person or entity without our prior written consent.
Very truly yours,
/s/ IRELL & MANELLA LLP
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IRELL & MANELLA LLP
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Exhibit 23.1
Consent of Independent Auditors
The Board of Directors
of ROSS Technology, Inc.:
We consent to incorporation by reference in this Amendment No. 2 to
Registration Statement on Form S-8, File No. 333-00920, of ROSS Technology, Inc.
of our report dated June 23, 1997 relating to the consolidated balance sheets of
ROSS Technology, Inc. and subsidiary as of March 31, 1997 and April 1, 1996, and
the related consolidated statements of operations, stockholders' equity
(deficit), and cash flows for each of the years in the three year period ended
March 31, 1997 and the related schedule, which report appears in the March 31,
1997 annual report on Form 10-K of ROSS Technology, Inc.
Our report dated June 23, 1997, contains an explanatory paragraph that
stated that the Company is dependent on its parent, Fujitsu Limited, for its
cash and capital requirements.
/S/ KPMG PEAT MARWICK LLP
--------------------------
KPMG Peat Marwick LLP
Austin, Texas
May 28, 1998
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