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As filed with the Securities and Exchange Commission on August 23, 1999
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
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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)
1998 NONSTATUTORY STOCK OPTION PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
1995 DIRECTOR 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
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)
Common Stock, $.001 par value
- - to be issued under 1998 Nonstatutory Stock Option Plan 353,997 $5.00 $1,769,985 $492.06
- - to be issued under the 1995 Employee Stock Purchase Plan 400,000 $5.00 $2,000,000 $556.00
- - to be issued under the 1995 Director Option Plan 150,000 $5.00 $750,000 $208.50
Total 903,997 $4,519,985.00 $1,256.56
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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 903,997 shares authorized and
reserved for issuance under the 1998 Nonstatutory Stock Option Plan, the
1995 Employee Stock Purchase Plan and the 1995 Director Option Plan was
determined by reference to the average between the high and low price
reported in the Nasdaq National Market on August 19, 1999 (the "FMV").
(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 $278 per
$1,000,000 offered or sold.
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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
333-61147 filed by the Company with the Securities and Exchange Commission
on August 11, 1998.
2. The Company's Annual Report on Form 10-K/A filed with the SEC for the
fiscal year ended December 31, 1998.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1999 filed pursuant to Section 13 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
4. 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 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,
Professional Corporation ("WSGR"), Palo Alto, California. Jeffrey D. Saper, a
member of WSGR, is a director and Secretary of the Registrant. As of the date of
this Form S-8 Registration Statement, Mr. Saper beneficially owned 19,642 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 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.
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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.
10.1 1998 Nonstatutory Stock Option Plan.
10.2 1995 Employee Stock Purchase Plan.
10.3 1995 Director Option Plan.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
ITEM 9. UNDERTAKINGS.
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.
(5) 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 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 23rd day of
August, 1999.
DIAMOND MULTIMEDIA SYSTEMS, INC.
By: /s/ William J. Schroeder
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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 James M. Walker
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
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/s/William J. Schroeder Director, Chief Executive Officer and August 23, 1999
- ------------------------------------ President (Principal Executive Officer)
William J. Schroeder
/s/James M. Walker Chief Financial Officer (Principal August 23, 1999
- ------------------------------------ Financial Officer)
James M. Walker
/s/ Carl W. Neun Director August 23, 1999
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Carl W. Neun
/s/ Bruce C. Edwards Director August 23, 1999
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Bruce C. Edwards
/s/ James T. Schraith Director August 23, 1999
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James T. Schraith
/s/ Gregorio Reyes Director August 23, 1999
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Gregorio Reyes
/s/ Jeffrey D. Saper Director August 23, 1999
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Jeffrey D. Saper
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EXHIBIT INDEX
Exhibit
Number Description of Document
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5.1 Opinion of Counsel as to legality of securities being registered.
10.1 1998 Nonstatutory Stock Option Plan.
10.2 1995 Employee Stock Purchase Plan.
10.3 1995 Director Option Plan.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).