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As filed with the Securities and Exchange Commission on July 18, 1996
Registration No. 333-__________
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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DIAMOND MULTIMEDIA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0390654
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2880 JUNCTION AVENUE
SAN JOSE, CALIFORNIA 95134-1922
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
1994 STOCK OPTION PLAN
(Full title of the plans)
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WILLIAM J. SCHROEDER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DIAMOND MULTIMEDIA SYSTEMS, INC.
2880 JUNCTION AVENUE
SAN JOSE, CALIFORNIA 95134-1922
(408) 325-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
HOWARD S. ZEPRUN, ESQ.
WILSON SONSINI GOODRICH & ROSATI SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE FEE(2)
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Common Stock, $.001 par value
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- - To be issued upon exercise of options
granted under 1994 Stock Option Plan 2,000,000 $ 7.69 $15,380,000.00 $5,303.44
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Total
2,000,000 $15,380,000.00 $5,303.44
========= ============== =========
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(1) Estimated in accordance with Rule 457(h) of Regulation C solely for the
purpose of calculating the registration fee.The proposed maximum aggregate
offering price per share with respect to the 2,000,000 shares authorized and
reserved for issuance under the 1994 Stock Option Plan has been estimated to
be the closing price reported in the Nasdaq National Market on July 12,
1996.
(2) Amount of Registration Fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which states that the fee shall be "one twenty-ninth
of one per centum of the maximum aggregate price at which such securities
are proposed to be offered."
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DIAMOND MULTIMEDIA SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant:
1. The contents of the Registration Statement on Form S-8 file
number 33-91118 filed by the Company with the Securities and
Exchange Commission on April 11, 1995.
2. The contents of the Registration Statement on Form S-8 file
number 33-98470 filed by the Company with the Securities and
Exchange Commission on October 23, 1995.
3. The Company's Annual Report on Form 10-K filed with the SEC for
the fiscal year ended December 31, 1995.
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
5. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated February
10, 1995, filed with the Securities and Exchange Commission
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including any amendment or report
filed for the purpose of updating such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing of
a post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold under
this registration statement, shall be deemed to be incorporated by reference
herein 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.
The validity of the issuance of shares of Common Stock offered hereby
will be passed upon for the Registrant by Wilson Sonsini Goodrich & Rosati
Sonsini, Goodrich & Rosati, P.C. ("WSGR"), Palo Alto, California. Jeffrey D.
Saper, a member of WSGR, is a director and Secretary of the Registrant. As of
the date of the Form S-1 Registration Statement, certain members of WSGR, or
investment partnerships of which such persons are partners, beneficially own
89,687 shares of Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporations 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 Act. The Registrant's
Bylaws provides for the mandatory indemnification of its directors and officers
and permissible indemnification of employees and other agents to the maximum
extent permitted by Delaware General Corporation Law. Registrant has entered
into an indemnification agreement with each of its officers and
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directors which provide the Registrant's officers and directors with
indemnification to the maximum extent permitted by the Delaware General
Corporation Law. In addition, the Registrant's Certificate of Incorporation
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for a breach of the directors' fiduciary duty as a director to
Registrant and its stockholders, provided that such liability does not arise
from certain proscribed conduct. Registrant also currently maintains officer and
director liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. INDEX TO EXHIBITS.
Exhibit
Number Description of Document
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5.1 Opinion of Counsel as to legality of securities being
registered.
10.4 1994 Stock Option Plan, as amended.
23.1 Consent of Coopers & Lybrand L.L.C., Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Powers of Attorney (see page 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 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.
(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.
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 Registrant's Certificate of
Incorporation, Bylaws, indemnification agreements 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
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the question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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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 San Jose, State of California, on this 18th day of
July, 1996.
DIAMOND MULTIMEDIA SYSTEMS, INC.
By: /s/ William J. Shroeder
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William J. Schroeder,
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William J. Schroeder and Gary B. Filler
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorney-in-fact, or his or her substitute or substitutes, may 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.
Signatures Title Date
/s/ William J. Schroerder Director, Chief Executive Officer and July 18, 1996
- -------------------------------- President (Principal Executive Officer)
William J. Schroeder
/s/ Gary B. Filler Chief Financial Officer (Principal July 18, 1996
- -------------------------------- Financial Officer)
Gary B. Filler
/s/ Chong Moon Lee Chairman of the Board July 18, 1996
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Chong-Moon Lee
/s/ Jeffrey T. Chambers Director July 18, 1996
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Jeffrey T. Chambers
/s/ Bruce C. Edwards Director July 18, 1996
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Bruce C. Edwards
/s/ Walter G. Kortschak Director July 18, 1996
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Walter G. Kortschak
/s/ Gregorio Reyes Director July 18, 1996
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Gregorio Reyes
/s/ Jeffrey D. Saper Director July 18, 1996
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Jeffrey D. Saper
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