As filed with the Securities and Exchange Commission on April 29, 2002
Registration No. 333-______
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 issuer as specified in its charter)
Delaware 77-0322161
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1225 Charleston Road
Mountain View, CA 94043-1353
(Address of principal executive offices)
MIPS Technologies, Inc. 2002 Non-Qualified Stock Option Plan
(Full title of the plan)
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
Proposed Maximum Proposed Maximum
Title of Securities to be Registered Amount to be Offering Price Aggregate Amount of
Registered Per Share(*) Offering Price Registration Fee
Class A Common Stock, 1,000,000 $7.12 $7,120,000 $655.04
$0.001 par value
(*) The price shown is the average of the bid and asked price of the Class A
Common Stock reported on the Nasdaq National Market on April 25, 2002 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.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- ----------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act, and the "Note" to Part I of Form S-8.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by MIPS Technologies, Inc. (the "Registrant") are
incorporated by reference in this Registration Statement:
(a) Annual Report of the Registrant on Form 10-K for the year ended
June 30, 2001.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") since the end of the fiscal year covered by the Registrant
document referred to in (a) above.
(c) The description of the Registrant's shares of Class A Common
Stock, par value $0.001 per share (the "Common Stock") to be
offered hereby is contained in the Registrant's Registration
Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on April 5, 1999, which registration statement
incorporates by reference the description set forth in the
Registrant's Proxy Statement filed on February 26, 1999 under
the heading "Description of MIPS Capital Stock Prior to and
Following the Recapitalization"; and subsequently amended by
Amendment No. 1 on Registrant's Registration Statement on Form
8-A filed on September 15, 2000, and including any amendment or
report filed for the purpose of updating such description.
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 to this Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and are a part thereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement 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, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
3
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.
4
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 of securities registered hereby, 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 purposes of determining any liability under the
Securities 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
the initial bona fide offering thereof; and
(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 further undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 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
Securities 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 Commission such
indemnification is against public policy as expressed in the Securities 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 and will be governed by the final
adjudication of such issue.
5
SIGNATURE
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 April 29, 2002.
MIPS TECHNOLOGIES, INC.
By: /s/ John E. Bourgoin
------------------------------
John E. Bourgoin
President, Chief Executive Officer and Director
6
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 Kevin C. Eichler, 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 Non-Qualified Stock Option 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 E. Bourgoin
- ----------------------------
John E. Bourgoin Chairman of the Board, President, Chief
Executive Officer, and Director (Principal
Executive Officer) April 29, 2002
/s/ Kevin C. Eichler
- ----------------------------
Kevin C. Eichler Vice President and Chief Financial Officer
(Principal Financial and Accounting
Officer) April 29, 2002
/s/ Kenneth L. Coleman
- ----------------------------
Kenneth L. Coleman Director April 29, 2002
/s/ Fred M. Gibbons
- ----------------------------
Fred M. Gibbons Director April 29, 2002
/s/ Anthony B. Holbrook
- ----------------------------
Anthony B. Holbrook Director April 29, 2002
/s/ Benjamin A. Horowitz
- ----------------------------
Benjamin A. Horowitz Director April 29, 2002
/s/ William M. Kelly
- ----------------------------
William M. Kelly Director April 29, 2002
7
EXHIBIT INDEX
Item 8. Exhibits
The following exhibits are filed as part of this Registration
Statement:
4.1 MIPS Technologies, Inc. 2002 Non-Qualified Stock Option Plan.
5.1 Opinion of Shearman & Sterling as to the validity of the shares being
registered pursuant to this Registration Statement.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Shearman & Sterling (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
- ---------------
8