Mips Technologies Inc - Securities Registration: Employee Benefit Plan (S-8)
12 January 2008 - 3:49AM
Edgar (US Regulatory)
As
filed with the Securities and
Exchange Commission on January 11, 2008
Registration
No. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE
COMMISSION
Washington,
D.C.
20549
Form
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF
1933
MIPS
TECHNOLOGIES,
INC.
(Exact
name of Registrant as specified in its charter)
Delaware
|
77-0322161
|
(State
or other jurisdiction of
incorporation
or organization)
|
(I.R.S.
Employer Identification No.)
|
1225
Charleston
Road
Mountain
View, CA
94043-1353
(Address
of principal executive offices)
MIPS
Technologies, Inc. 1998
Long-Term Incentive Plan, as amended
MIPS
Technologies, Inc. Employee
Stock Purchase Plan, as amended
(Full
titles of the plans)
John
E. Bourgoin
Chief
Executive Officer and
President
MIPS
TECHNOLOGIES,
INC.
1225
Charleston
Road
Mountain
View, CA
94043-1353
(Name
and
address of agent for service)
(650)
567-5000
(Telephone
number, including area code, of agent for service)
CALCULATION
OF REGISTRATION
FEE
|
|
Common
Stock,
$0.001
par value
(4)
|
|
|
Common
Stock,
$0.001
par value
(4)
|
|
|
Total
|
|
Amount
to be
Registered
|
|
|
18,131,508
|
(1)
|
|
|
1,458,178
|
(2)
|
|
|
19,589,686
|
|
Proposed
Maximum Offering
Price
Per
Share(3)
|
|
$
|
4.375
|
|
|
$
|
3.72
|
|
|
|
|
|
Proposed
Maximum
Aggregate
Offering
Price
|
|
$
|
79,325,347.50
|
|
|
$
|
5,422,599.44
|
|
|
$
|
84,787,946.94
|
|
Amount
of
Registration
Fee
|
|
$
|
2,435.29
|
|
|
$
|
166.47
|
|
|
$
|
2,601.76
|
|
(1)
|
Represents
shares of Common Stock reserved for future grant under the Registrant’s
Amended and Restated 1998 Long Term Incentive Plan (the “Amended 1998
Plan”). Such number consists of a maximum of 18,131,508
shares of Common Stock which represent currently outstanding awards
under
the 1998 Plan of 16,844,374, the 2002 Non-Qualified Stock Option
Plan of
777,134 and Directors’ Stock Option Plan of 510,000. Currently
outstanding awards under the 1998 Plan and the 2002 Non-Qualified
Stock
Option Plan and Directors' Stock Option Plan may become available
under the 1998 Plan upon forfeiture. The Amended 1998 Plan does
not provide an “evergreen” feature to increase the shares available under
the 1998 Plan.
|
(2)
|
Represents
(a) 1,000,000 shares of Common Stock reserved for future grant
under the
Registrant’s Amended and Restated Employee Stock Purchase Plan (the
“ESPP”) and (b) a maximum of 458,178 shares of Common Stock currently
available for issuance under the ESPP which may become available
upon
expiration, lapse or termination.
|
(3)
|
T
he
price shown is the
average of the bid and asked price of the Common Stock reported
on the
Nasdaq National Market on January 7, 2008, in accordance with Rule
457(c)
of the Securities Act of 1933, as amended (the “Securities Act”), and is
being used solely for the purpose of calculating the registration
fee. In the case of the Employee Stock Purchase Plan, this
amount is multiplied by 85%, which amount is the percentage of
the price
per share applicable to purchases under the Employee Stock Purchase
Plan.
|
(4)
|
This
Registration Statement also covers rights to purchase shares of
the
Registrant's Series A Participating Preferred Stock (the "Rights")
that
are attached to all shares of the Registrant's common stock. Until
the
occurrence of certain prescribed events, the Rights are not exercisable,
are evidenced by the certificates for common stock and will be
transferable along with and only with the common stock. The value
attributable to the Rights, if any, is reflected in the value of
the
common stock.
|
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM
1. PLAN INFORMATION
Not
required to be filed with this Registration Statement.
ITEM
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL
INFORMATION.
Not
required to be filed with this Registration Statement.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
ITEM
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The
following documents, all of which Registrant previously filed with the
Securities and Exchange Commission pursuant to the Securities Exchange Act
of
1934 (the “Exchange Act”) are incorporated herein by this
reference:
(1)
Registrant’s Annual Report on Form 10-K for the year ended June 30, 2007, filed
with the Commission on September 13, 2007.
(2)
Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30,
2007, filed with the Commission on November 14, 2007.
(3)
All
other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act
since
the end of the fiscal year covered by Registrant’s latest Annual Report referred
to in (1) above.
(4)
The
description of Registrant’s common stock as set forth in the Registration
Statement on Form 8-A filed with the Commission on April 5, 1999, File No.
000-24487, including any amendments or reports filed with the Commission
for the
purpose of updating such description.
(5)
The
description of Registrant’s Preferred Stock Rights contained in the Registration
Statement on Form 8-A filed with the Commission on November 18, 2003, File
No.
000-24487, including any other amendments or reports filed for the purpose
of
updating such description.
All
reports and other documents filed by the Registrant pursuant to sections
13(a),
13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby 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 part hereof from the
date
of filing such documents. Unless expressly incorporated into this
Registration Statement, a report furnished on Form 8-K prior or subsequent
to
the date hereof shall not be incorporated by reference into this Registration
Statement. 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 such statement so modified or superseded shall not be
deemed to constitute a part hereof, except as so modified or
superseded.
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 (the "DGCL") empowers a Delaware corporation to indemnify
any
persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of such
corporation), by
reason
of
the fact that such person is or was an officer or director of such corporation
or is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts
paid
in settlement actually and reasonably incurred by such person in connection
with
such action, suit or proceeding, provided that such officer or director 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, in the case of criminal
proceedings, had no reasonable cause to believe his or her conduct was illegal.
A Delaware corporation may indemnify officers and directors against expenses
(including attorneys' fees) in connection with the defense or settlement
of an
action by or in the right of the corporation under the same conditions, except
that no indemnification is permitted without judicial approval if the officer
or
director is adjudged to be liable to the corporation. Where an
officer or director is successful on the merits or otherwise in the defense
of
any action referred to above, the corporation must indemnify him or her against
expenses which such officer or director actually and reasonably incurred.
The
Restated Certificate of Incorporation of the Registrant provides for
indemnification of the officers and directors of the Registrant to the full
extent permitted by applicable law.
In
accordance with Delaware law, the Restated Certificate of Incorporation of
the
Registrant contains a provision to limit the personal liability of directors
of
the Registrant for violations of their fiduciary duty. This provision
eliminates 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 to the Registrant or its stockholders, (ii) for acts or omissions
not in
good faith or that involve intentional misconduct or a knowing violation
of law,
(iii) under Section 174 of the DGCL, providing for liability of directors
for
unlawful payment of dividends or unlawful stock purchases or redemptions
or (iv)
for any transaction from which a director derived an improper personal benefit.
The effect of this provision is to eliminate the personal liability of directors
for monetary damages for actions involving a breach of their fiduciary duty
of
care, including any such actions involving gross negligence.
The
indemnification provisions in the Bylaws may be sufficiently broad to permit
indemnification of the registrant's directors and officers for liabilities
arising within the meaning of the Securities Act.
ITEM
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not
applicable.
ITEM
8. EXHIBITS.
See
Exhibit Index.
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:
(i)
to
include any prospectus required by Section 10(a)(3) or the Securities Act
of 1933;
(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. 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 end 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 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) of this section do not apply
if the information required to be included in a post-effective amendment
by
those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
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, 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
of
1933 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.
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
Mountain View, California, on January 10, 2008.
|
MIPS
TECHNOLOGIES,
INC.
|
|
|
|
|
|
|
By:
|
/s/ JOHN
BOURGOIN
|
|
|
|
John
Bourgoin
|
|
|
|
President,
Chief Executive Officer and Director
|
|
|
|
|
|
SIGNATURES
and
POWER OF
ATTORNEY
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. In addition, each person whose signature appears below
constitutes and appoints John E. Bourgoin and Mervin S. Kato, each alone
to act
as his true and lawful attorney-in-fact and agent, each with the full power
of
substitution, for him and in his name in any and all capacities, to sign
any or
all amendments, including pre-effective and post-effective amendments, and
supplements to this Registration Statement on Form S-8 relating to the
Registrant’s Amended and Restated 1998 Long-Term Incentive Plan and Amended and
Restated Employee Stock Purchase Plan, and to file the same, with exhibits
thereto and other documents in connection therewith, with the 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 each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be
done
by virtue hereof.
Signature
|
Title
|
Date
|
/s/ John
F. Bourgoin
|
President, Chief Executive Officer, and Director
|
January
10, 2008
|
John
E. Bourgoin
|
(Principal
Executive
Officer)
|
|
/s/ Mervin
S. Kato
|
Vice President and Chief Financial Officer
|
|
Mervin
S. Kato
|
(Principal
Financial and
Accounting Officer)
|
|
/s/ Kenneth
L. Coleman
|
Director
|
|
Kenneth
L. Coleman
|
|
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/s/ Jose E. Franca
|
|
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Jose
E. Franca
|
|
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/s/ Fred
M. Gibbons
|
Director
|
|
Fred
M. Gibbons
|
|
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/s/ Robert
R. Herb
|
Director
|
|
Rober
R. Herb
|
|
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/s/ Anthony
B. Holbrook
|
Director and Chairman of the Board of Directors
|
|
Anthony
B. Holbrook
|
|
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/s/ William
M. Kelly
|
Director
|
|
William
M. Kelly
|
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EXHIBIT
INDEX
Item
8. Exhibits
Exhibit
No.
|
|
Exhibit
|
Form
|
|
File
No.
|
|
|
Filing
Date
|
|
|
Exhibit
No.
|
|
Filed
Herewith
|
|
4.01
|
|
Preferred
Stock Rights Agreement
|
8-A
|
|
|
000-24487
|
|
|
|
11-18-03
|
|
|
|
10.11.3
|
|
|
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4.02
|
|
MIPS
Technologies, Inc. Amended and Restated 1998 Long-Term Incentive
Plan
|
14A
|
|
|
000-24487
|
|
|
|
10-25-07
|
|
|
|
A
|
|
|
|
4.03
|
|
MIPS
Technologies, Inc. Amended and Restated Employee Stock Purchase
Plan
|
|
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|
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X
|
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5.01
|
|
Opinion
of Fenwick & West LLP
|
|
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X
|
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23.01
|
|
Consent
of Fenwick & West LLP (included in Exhibit 5.01)
|
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X
|
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23.02
|
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm
|
|
|
|
|
|
|
|
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|
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|
X
|
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24.01
|
|
Power
of Attorney (included on signature page)
|
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X
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