AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON May 10, 2002
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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DCH TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 2810 84-1349374
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(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Identification Number)
Classification Code)
24832 AVENUE ROCKEFELLER
VALENCIA, CALIFORNIA 91355
(661) 775-8120
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
DCH TECHNOLOGY, INC. 2001 STOCK OPTION PLAN
JOHN DONOHUE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DCH TECHNOLOGY, INC.
24832 AVENUE ROCKEFELLER
VALENCIA, CALIFORNIA 91355
(661) 775-8120
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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COPY TO:
CATHRYN S. GAWNE, ESQ.
SILICON VALLEY LAW GROUP
152 NORTH THIRD STREET, SUITE 900
SAN JOSE, CALIFORNIA 95112
Telephone: (408) 286-6100
Telecopier: (408) 286-1400
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE FEE
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COMMON STOCK,
$.01 PAR VALUE 5,000,000 SHARES $ 0.33 $ 1,650,000.00 $ 151.80
TOTAL 5,000,000 SHARES $ 0.33 $ 1,650,000.00 $ 151.80
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(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 (h).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1) promulgated under the Securities Act
of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this registration
statement:
(a) The Registrant's latest annual report filed on Form 10-KSB for the
fiscal year ended December 31, 2001, filed with the Securities and
Exchange Commission pursuant to Section 13(a) of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) The description of the Registrant's Common Stock contained in the
section of the Registrant's Registration Statement on Form S-3 as
filed on December 1, 2000 entitled, "Description of Capital Stock."
In addition, 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 which indicates that all securities offered herein
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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of our Bylaws requires us to indemnify, to the fullest extent
allowed by applicable law, any person who serves or who has served at any time
as a director or an officer of DCH, and any director or officer who, at the
request of us, serves or at any time has served as a director or officer,
employee, or agent of another corporation, or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against any and all liabilities and loss suffered and
reasonable expenses incurred in connection with any claim, action, suit, or
proceeding to which such director or officer is made a party, or which may be
asserted against him, because he is or was a director or an officer.
Section 145 of the Delaware General Corporations Law authorizes the
indemnification of directors and officers against liability incurred by reason
of being a director, officer, employee or agent and against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative. Unless an action is brought by, or in the right of the
corporation, this indemnification applies where the indemnified party acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation. Indemnification in criminal actions or
proceedings is available where the officer or director had no reasonable cause
to believe his conduct was unlawful.
The above discussion of our Bylaws and the Delaware General Corporations
Law is only a summary and is qualified in its entirety by the full text of each
of the foregoing.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this registration statement:
Exhibit Number Description of Exhibit
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4.1 Amended 2001 Stock Option Plan of the Registrant.
4.2 Form of Stock Option Agreement under the 2001 Stock Option
Plan of the Registrant.
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1).
23.2 Consent of Moss Adams LLP.
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 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 provisions described under Item 6
above, 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 Securities Act of 1933 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.
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 Valencia, State of California, on May 10, 2002.
DCH TECHNOLOGY, INC.
By: /s/ JOHN DONOHUE
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John Donohue
President & Chief Executive Officer
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/ John T. Donohue President and Chief May 10, 2002
- ------------------------------ Executive Officer and Director
John T. Donohue
/s/ Ronald L. Ilsley Vice President, Finance and May 10, 2002
- ------------------------------ Chief Financial Officer
Ronald L. Ilsley
(principal accounting officer)
/s/ Dr. Johan Friedericy Vice President, May 10, 2002
- ------------------------------ Chief Operating Officer
Dr. Johan (Hans) Friedericy and Director
/s/ Daniel Teran Director May 10, 2002
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Daniel Teran
/s/ Robert S. Walker Director and Chairman May 10, 2002
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Robert S. Walker
EXHIBIT INDEX
Exhibit Number Description of Exhibit
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4.1 Amended 2001 Stock Option Plan of the Registrant.
4.2 Form of Stock Option Agreement under the 2001 Stock Option
Plan of the Registrant.
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
23.2 Consent of Moss Adams LLP