-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OhXrG3rgs7Pfk7UT7byguxAZ+ukm5rfCzNWUBRX5nT73IQW9yb6Yu7hEXy9J3Exy lcEaLu/CtwqRBiSumipqDQ== 0001047469-98-043753.txt : 19981214 0001047469-98-043753.hdr.sgml : 19981214 ACCESSION NUMBER: 0001047469-98-043753 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981211 EFFECTIVENESS DATE: 19981211 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DSP COMMUNICATIONS INC CENTRAL INDEX KEY: 0000934545 STANDARD INDUSTRIAL CLASSIFICATION: RADIO & TV BROADCASTING & COMMUNICATIONS EQUIPMENT [3663] IRS NUMBER: 770389180 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-68777 FILM NUMBER: 98768415 BUSINESS ADDRESS: STREET 1: 20300 STEVENS CREEK BLVD STREET 2: 4TH FLOOR CITY: CUPERTINO STATE: CA ZIP: 95014 BUSINESS PHONE: 4087772700 MAIL ADDRESS: STREET 1: 1999 HARRISON STREET STREET 2: SUITE 1300 CITY: OAKLAND STATE: CA ZIP: 94612 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 11, 1998 Registration No. 333- ------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- DSP COMMUNICATIONS, INC. (Exact name of registrant as specified in its charter) Delaware 77-0389180 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 20300 Stevens Creek Boulevard Cupertino, California 95014 (Address of Principal Executive Offices) (Zip Code) DSP Communications, Inc. 1998 Non-Qualified Stock Option Plan (Full title of the Plan) Davidi Gilo Chairman of the Board DSP COMMUNICATIONS, INC. 20300 Stevens Creek Boulevard Cupertino, California 95014 (Name and address of agent for service) (408) 777-2700 (Telephone number, including area code, of agent for service) Copy to: Bruce P. Johnson, Esq. VENTURE COUNSEL ASSOCIATES, LLP 1999 Harrison Street, Suite 1300 Oakland, California 94612 This Registration Statement shall become effective immediately upon filing with the Securities and Exchange Commission, and sales of the registered securities will thereafter be effected upon option exercises under the 1998 Non-Qualified Stock Option Plan, under which 5,000,000 shares of Common Stock are available (the "Plan"). -------------- CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------- Proposed Proposed Number of Maximum Maximum Amount Title of Shares Offering Aggregate of Securities to be to be Price Offering Registration Registered Registered per Share(1) Price(1) Fee - ----------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------- Common Stock, 5,000,000 $ 11.7133 $ 58,566,429 $ 16,282 $0.001 par value per share - ----------------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------------
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee. The price per share and aggregate offering price are based upon (a) the actual exercise price for shares subject to outstanding options previously granted under the Plan and (b) the average of the high and low prices of the registrant's Common Stock as reported on the New York Stock Exchange on December 9, 1998, which average price was $16.1875 per share, for shares issuable under options available for grant under the Plan. The following chart shows the calculation of the registration fee.
NUMBER OF OFFERING PRICE AGGREGATE TYPES OF SHARES SHARES PER SHARE OFFERING PRICE Shares subject to outstanding stock options under the Plans 2,267,976 $6.3236(i) $14,341,791 Shares remaining for grants as options under the Plan 2,732,024 $16.1875 $44,224,639
(i) Weighted average exercise price based on stock option exercise prices ranging from $6.125 to $10.50 per share. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in (a) through (d) below are incorporated by reference in this Registration Statement. (a) The registrant's annual report on Form 10-K for the year ended December 31, 1997, which was filed with the Securities and Exchange Commission (the "Commission") on March 19, 1998. (b) All other reports filed by the registrant since December 31, 1997, with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (c) The description of securities to be registered contained in the Registration Statement filed with the Commission on Form 8-A under the Exchange Act and declared effective on March 7, 1995, including any amendment or reports filed for the purpose of updating such description. (d) All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which de-registers 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. Section 145(a) of the Delaware General Corporation Law (the "DGCL") provides in relevant part that "a corporation may 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, 3 administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that he is or was a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful." With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that "[a] corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor. . . . [by reason of his service in one of the capacities specified in the preceding sentence] against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation and except that no indemnification shall be made in respect of 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 upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper." The registrant's Certificate of Incorporation provides that each person who is or was or who had agreed to become a director or officer of the registrant or who had agreed at the request of the registrant's Board of Directors or an officer of the registrant to serve as an employee or agent of the registrant or as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall be indemnified by the registrant to the fullest extent permitted by the DGCL, or any other applicable laws. Such Certificate of Incorporation also provides that the registrant may enter into one or more agreements with any person which provides for indemnification greater or different than that provided in such Certificate, and that no amendment or repeal of such Certificate shall apply to or have any effect on the right to indemnification permitted or authorized thereunder for or with respect to claims asserted before or after such amendment or repeal arising from acts or omissions occurring in whole or in part before the effective date of such amendment or repeal. The registrant's Bylaws provide that the registrant shall indemnify to the fullest extent authorized by law any person made or threatened to be made a party to an action or a proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate was or is a director, officer or employee of the registrant or any predecessor of the registrant or serves or served any other enterprise as a director, officer or employee at the request of the registrant or any predecessor of the registrant. The registrant has entered into indemnification agreements with its directors and certain of its officers. 4 The registrant has purchased and maintains insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him and incurred by him in any such capacity, subject to certain exclusions. There is no pending litigation or proceeding involving a director, officer, employee or other agent of the registrant as to which indemnification is being sought, nor is the registrant aware of any pending or threatened litigation that may result in claims for indemnification by any director, officer, employee or other agent. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
Exhibit Number Exhibit Description - -------------- ------------------------------------------------------- 5 Opinion of Venture Counsel Associates, LLP as to the legality of the securities being registered. 10.1 1998 Non-Qualified Stock Option Plan. (Filed as Exhibit 10.34 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998, as filed on November 12, 1998, and incorporated herein by reference). 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Venture Counsel Associates, LLP (contained in the opinion of counsel filed as Exhibit 5 to this Registration Statement). 24 Power of Attorney (set forth on the signature page of this Registration Statement).
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. 5 (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (the "Act"), 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 in 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 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) Insofar as indemnification for liabilities arising under the 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 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. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Cupertino, State of California, on December 10, 1998. DSP COMMUNICATIONS, INC., a Delaware corporation By: /s/ Joseph Perl -------------------------------------- Joseph Perl President and Chief Executive Officer 7 POWER OF ATTORNEY AND ADDITIONAL SIGNATURES Each person whose signature appears below constitutes and appoints Joseph Perl and Davidi Gilo, his true and lawful attorney-in-fact and agent, each with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, 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 and agents, or their substitutes, may lawfully do or cause to be done by virtue thereof. Further, 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.
Signature Title Date - --------- ----- ---- /s/ Davidi Gilo Chairman of the Board of Directors December 10, 1998 - ------------------------ ----------------- Davidi Gilo /s/ Joseph Perl President, Chief Executive Officer and December 10, 1998 - ------------------------ Director (Principal Executive Officer) ----------------- Joseph Perl /s/ David Aber Chief Financial Officer (Principal December 10, 1998 - ------------------------ Financial & Accounting Officer) ----------------- David Aber s/ Gerald Dogon Director December 10, 1998 - ------------------------ ----------------- Gerald Dogon /s/ Lewis S. Broad Director December 10, 1998 - ------------------------ ----------------- Lewis S. Broad /s/ Avraham Fischer Director December 10, 1998 - ------------------------ ----------------- Avraham Fischer /s/ Andrew W. Schonzeit Director December 10, 1998 - ------------------------ ----------------- Andrew W. Schonzeit /s/ Shigeru Iwamoto Director December 10, 1998 - ------------------------ ----------------- Shigeru Iwamoto /s/ Neill H. Brownstein Director December 10, 1998 - ------------------------ ----------------- Neill H. Brownstein
8 EXHIBIT LIST
Exhibit Number Exhibit Description - -------------- ------------------------------------------------------------ 5 Opinion of Venture Counsel Associates, LLP as to the legality of the securities being registered. 10.1 1998 Non-Qualified Stock Option Plan (Filed as Exhibit 10.34 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998, as filed on November 12, 1998, and incorporated herein by reference). 23.1 Consent of Ernst & Young LLP, Independent Auditors. 23.2 Consent of Venture Counsel Associates, LLP (contained in the opinion of counsel filed as Exhibit 5 to this Registration Statement). 24 Power of Attorney (set forth on the signature page of this Registration Statement).
9 EX-5 2 EXHIBIT 5 EXHIBIT 5 VENTURE COUNSEL ASSOCIATES, LLP Attorneys at Law Lake Merritt Plaza Building 1999 Harrison Street, Suite 1300 Oakland, California 94612 Telephone (510) 273-8750 Facsimile (510) 834-7440 December 10, 1998 DSP Communications, Inc. 20300 Stevens Creek Boulevard, 4th Floor Cupertino, CA 95014 RE: REGISTRATION STATEMENT ON FORM S-8 Gentlemen: As general counsel to DSP Communications, Inc., a Delaware corporation (the "Company"), we have been asked by the Company to review the Registration Statement on Form S-8 to be filed by the Company with the Securities and Exchange Commission on, or about, December 10, 1998 (the "Registration Statement"). This is in connection with the registration under the Securities Act of 1933, as amended, of five million (5,000,000) shares of the Company's Common Stock, $0.001 par value per share (the "Plan Shares"), none of which are presently issued and outstanding. As your general counsel, we have examined the proceedings and such other documents as we have deemed necessary relating to the issuance of five million (5,000,000) Plan Shares to be issued under the Company's 1998 Non-Qualified Stock Option Plan. In rendering this opinion, we have assumed, without investigation, the genuineness of all signatures; the correctness of all certificates; the authenticity of all documents submitted to us as originals; the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies and the authenticity of the originals of such copies; and the accuracy and completeness of all records made available to us by, or on behalf of, the Company. In addition, we have assumed, without investigation, the accuracy of the representations and statements as to factual matters made by the Company, its officers and employees, and public officials. Nothing has come to our attention, however, which would lead us to question the accuracy or completeness of such representations, warranties or statements. DSP Communications, Inc. December 10, 1998 Page 2 RE: REGISTRATION STATEMENT ON FORM S-8 In rendering the opinion hereinafter expressed, we have examined and relied upon such documents and instruments as we have deemed necessary and appropriate. It is our opinion that the Plan Shares, when subsequently issued upon payment therefor in accordance with the terms of the 1998 Non-Qualified Stock Option Plan, will be validly issued, fully paid and nonassessable. We express no opinion concerning any law other than the General Corporation Law of the State of Delaware. This opinion is intended solely for your benefit and is not to be made available to or be relied upon by any other person, firm, or entity without our prior written consent. We consent to the use of this opinion as an Exhibit to the Registration Statement, and further consent to all references to this Firm in the Registration Statement and any amendments thereto. Very truly yours, /s/ Venture Counsel Associates, LLP VENTURE COUNSEL ASSOCIATES, LLP EX-23.1 3 EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8), pertaining to the DSP Communications, Inc. 1998 Non-Qualified Stock Option Plan of our reports dated January 13, 1998 (except for Note 13, as to which the date is February 9, 1998), with respect to the consolidated financial statements and schedule of DSP Communications, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the Securities and Exchange Commission. Palo Alto, California December 4, 1998 -----END PRIVACY-ENHANCED MESSAGE-----