As filed with the Securities and Exchange Commission on January 16, 1998
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
ILC TECHNOLOGY, INC.
(Exact name of issuer as specified in its charter)
California 94-1655721
(State of Incorporation) (I.R.S. Employer Identification No.)
399 Java Drive, Sunnyvale, California 94089
(Address of Principal Executive Office Including Zip Code)
ILC TECHNOLOGY, INC.
1992 STOCK OPTION PLAN
1985 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Henry C. Baumgartner
Chairman and Chief Executive Officer
ILC Technology, Inc., 399 Java Drive
Sunnyvale, California 94089
(408) 745-7900
(Name, address and telephone number of agent for service)
Copy to:
KATHERINE TALLMAN SCHUDA
FENWICK & WEST
Two Palo Alto Square
Palo Alto, CA 94306
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate
Securities to to be Price per Offering Amount of
Be Registered Registered Share (1) Price Registration Fee
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Common Stock 225,000 $14.375 $3,234,375 $954.14
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933
and based upon an average of the high and low prices reported on the Nasdaq
National Market on January 13, 1998.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
September 27, 1997, filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act");
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
on November 25, 1983 under Section 12 of the Exchange Act, as amended
by Form 8 filed February 3, 1987; and
3. The description of the Company's Common Share Purchase Rights
contained in the Company's Registration Statement on Form 8-A filed
with the Commission on October 2, 1989 under Section 12 of the
Exchange Act, as amended by Form 8-A/A dated February 25, 1997.
All documents filed by the Company 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 in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. DESCRIPTION OF SECURITIES
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Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
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None.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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The Company has adopted provisions in its Restated Articles of
Incorporation that limit the liability of its directors. As permitted by the
California General Corporation Law, directors will not be liable to the Company
for monetary damages arising from a breach of their fiduciary duty as directors,
in certain circumstances. Such limitation does not affect liability for any
breach of a director's duty to the Company or its shareholders (i) with respect
to approval by a director of any transaction from which he derives an improper
personal benefit, (ii) with respect to acts or omissions that involve an absence
of good faith, that a director believes to be contrary to the best interests of
the Company or its shareholders, that involve intentional misconduct or a
knowing and culpable violation of law, that constitute an unexcused pattern of
inattention that amounts to an abdication of a director's duty to the Company or
its shareholders, or that show a reckless disregard for a director's duty to the
Company or its shareholders in circumstances in which a director was, or should
have been, aware, in the ordinary course of performing his duties, of a risk of
serious injury to the Company or its shareholders, or (iii) based on
transactions between the Company and its directors or another corporation with
interrelated directors or on improper distributions, loans or guarantees under
applicable sections of the California General Corporation Law. Such limitation
of liability also does not affect the availability of equitable remedies such as
injunctive relief or rescission.
The Company's Bylaws provide that the Company shall indemnify its directors
and executive officers to the full extent permitted by California law, including
circumstances in which indemnification is otherwise discretionary under
California law. The Company has entered into indemnification agreements with
each of its executive officers and directors, which may require the Company,
among other things, to indemnify its directors and executive officers against
certain liabilities that may arise by reason of their status or service as
directors or executive officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a result
of any proceeding against them as to which they could be indemnified, and to
obtain directors' and officers' insurance if available on reasonable terms. In
addition, the Company has director and officer liability insurance.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers or controlling persons of the Company pursuant
to the foregoing provisions, the Company has been informed 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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
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Not applicable.
Item 8. EXHIBITS
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EXHIBIT NO. DESCRIPTION
4.1* Restated Articles of Incorporation filed March 8, 1991 (previously filed as
Exhibit 3.1 to Annual Report on Form 10-K for the fiscal year ended
September 28, 1991, File No. 0-11360)
4.2* Amended and Restated Bylaws as of November 21, 1996 (previously filed as
Exhibit 3.2 to Annual Report on Form 10-K for the fiscal year ended
September 28, 1996, File No. 0-11360)
4.3* Rights Agreement between the Company and Security Pacific National Bank
dated as of September 29, 1989 (previously filed as Exhibit 2 to Current
Report on Form 8-K dated September 29, 1989)
4.4* First Amendment to Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C. dated as of February 25, 1997 (previously
filed as Exhibit 2 to Current Report on Form 8-K dated February 25, 1997)
4.5* 1992 Stock Option Plan, as amended, and related form of Option Agreement
(previously filed as Exhibit 10.4 to Annual Report on Form 10-K for the
fiscal year ended September 27, 1997, File No. 0-11360)
5.1 Opinion of Fenwick & West LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See page II-5)
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* These exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
Item 9. UNDERTAKINGS
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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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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 thereto) 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
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(c) 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 (1)(a) and (1)(b) 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 registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 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.
(4) 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.
(5) To deliver or cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual report to security
holders that is incorporated by reference in the prospectus and furnished
pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under
the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not
set forth in the prospectus, to deliver, or cause to be delivered to each
person to whom the prospectus is sent or given, the latest quarterly report
that is specifically incorporated by reference in the prospectus to provide
such interim financial information.
(6) 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 of 1933, the registrant,
ILC Technology, Inc., 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 January 16,
1998.
ILC TECHNOLOGY, INC.
By: /S/ HENRY C. BAUMGARTNER
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Henry C. Baumgartner
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Henry C.
Baumgartner and Ronald E. Fredianelli and each of them, his true and lawful
attorneys-in-fact and agents, each with the power of substitution, for him and
in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting to said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, 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 either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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
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/S/ HENRY C. BAUMGARTNER Chairman of the Board January 16, 1998
- ------------------------ and Chief Executive
Henry C. Baumgartner Officer and Director
/S/ RONALD E. FREDIANELLI Chief Financial Officer January 16, 1998
- ------------------------ (Principal Financial
Ronald E. Fredianelli and Accounting Officer)
/S/ RICHARD D. CAPRA President and Chief January 16, 1998
- --------------------- Operating Officer and
Richard D. Capra Director
/S/ HARRISON A. AUGUR Director January 16, 1998
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Harrison A. Augur
/S/ ARTHUR L. SCHAWLOW Director January 16, 1998
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Arthur L. Schawlow
______________________ Director January , 1998
George B. Clairmont
INDEX TO EXHIBITS
Exhibit Number Exhibit
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4.1* Restated Articles of Incorporation filed March 8, 1991 (previously filed as
Exhibit 3.1 to Annual Report on Form 10-K for the fiscal year ended
September 28, 1991, File No. 0-11360)
4.2* Amended and Restated Bylaws as of November 21, 1996 (previously filed as
Exhibit 3.2 to Annual Report on Form 10-K for the fiscal year ended
September 28, 1996, File No. 0-11360)
4.3* Rights Agreement between the Company and Security Pacific National Bank
dated as of September 29, 1989 (previously filed as Exhibit 2 to Current
Report on Form 8-K dated September 29, 1989)
4.4* First Amendment to Rights Agreement between the Company and ChaseMellon
Shareholder Services, L.L.C. dated as of February 25, 1997 (previously
filed as Exhibit 2 to Current Report on Form 8-K dated February 25, 1997)
4.5* 1992 Stock Option Plan, as amended, and related form of Option Agreement
(previously filed as Exhibit 10.4 to Annual Report on Form 10-K for the
fiscal year ended September 27, 1997, File No. 0-11360)
5.1 Opinion of Fenwick & West LLP
23.1 Consent of Counsel (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See page II-5)
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* These exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
EXHIBIT 5.1
January 16, 1998
ILC Technology, Inc.
399 Java Drive
Sunnyvale, CA 94089
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to
be filed by you with the Securities and Exchange Commission (the "Commission")
on January 16, 1998 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of up
to 225,000 shares of your Common Stock (the "Stock"), of which up to 175,000
shares are reserved for issuance upon the exercise of options to be granted by
you pursuant to your 1992 Stock Option Plan (the "Option Plan") and up to 50,000
shares are reserved for issuance pursuant to your 1985 Employee Stock Purchase
Plan (the "Purchase Plan" and collectively with the Option Plan, the "Plans.").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the exhibits filed as a part
thereof;
(2) the prospectus prepared in connection with the Registration Statement;
(3) the Plans and related forms of Stock Option Agreement and Exercise
Agreement;
(4) the minutes of the meeting of the shareholders held on February 12, 1997
and the minutes of the meeting of the Board of Directors held on November
21, 1996 relating to the Plans and the Registration Statement that you have
provided to us;
(5) the Company's Restated Articles of Incorporation filed with the California
Secretary of State on March 8, 1991, and incorporated by reference as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended September 28, 1996 (the "1996 10-K");
(6) the Company's Bylaws, as amended through November 21, 1996, filed as an
exhibit to the 1996 10-K; and
(7) a Management Certificate addressed to us and dated of even date herewith
executed by the Company containing certain factual representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
ILC Technology, Inc.
January 16, 1998
Page 2
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed terminations, modifications, waivers or
amendments to any documents reviewed by us and the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof. We have confirmed the continued effectiveness of the
Company's registration under the Securities Exchange Act of 1934 by a telephone
call to the offices of the Securities and Exchange Commission.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information included in the documents referred
to above. We have made no independent investigation or other attempt to verify
the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; HOWEVER, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
Based upon the foregoing, it is our opinion that the up to 175,000 shares
of your Common Stock that are reserved for issuance upon the exercise of options
granted by you pursuant to your Option Plan and up to 50,000 shares of your
Common Stock that are reserved for issuance pursuant to your Purchase Plan, when
issued and sold in the manner referred to in the applicable Plan and the
Prospectus, will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
This opinion speaks only as of its date and is intended solely for your use
as an exhibit to the Registration Statement for the purpose of the above sale of
the Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated December 1, 1997
included in ILC Technology, Inc.'s Form 10-K for the year ended September 27,
1997.
ARTHUR ANDERSEN LLP
San Jose, California
January 16, 1998