As filed with the Securities and Exchange Commission on February 5, 1999
Registration Statement No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under The Securities Act of 1933
LEVEL ONE COMMUNICATIONS, INCORPORATED
(Exact name of Registrant as specified in its charter)
DELAWARE 33-0128224
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9750 GOETHE ROAD
SACRAMENTO, CALIFORNIA 95827
(Address of Principal Executive Offices)
JATO TECHNOLOGIES, INC.
1997 STOCK PLAN
(Full Title of Plan)
JOHN KEHOE
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
LEVEL ONE COMMUNICATIONS, INCORPORATED
9750 GOETHE ROAD
SACRAMENTO, CALIFORNIA 95827
(916) 855-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
GILLES S. ATTIA, ESQ.
GRAHAM & JAMES LLP
400 CAPITOL MALL, 24TH FLOOR
SACRAMENTO, CALIFORNIA 95814-4411
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------
AMOUNT TO BE PROPOSED PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES REGISTERED MAXIMUM AGGREGATE OFFERING REGISTRATION FEE
TO BE REGISTERED OFFERING PRICE PRICE (2)
PER SHARE(2)
- --------------------------------------------------------------------------------------------------
Common Stock, par 486,088 shares $0.27 $136,105 $40.15
value $0.001 per share (1)
- --------------------------------------------------------------------------------------------------
(1) Pursuant to an Agreement and Plan of Reorganization dated as of November
9, 1998 (the "Reorganization Agreement"), by and between the Registrant,
Thunderhill Acquisition Corp. and Jato Technologies, Inc. ("Jato"), the
Registrant assumed all of the outstanding options to purchase Common Stock of
Jato (the "Assumed Options") under the Jato Technologies, Inc. 1997 Stock
Plan, with appropriate adjustments to the number of shares and exercise price
of each Assumed Option to reflect the ratio at which the Common Stock of Jato
was converted into Common Stock of the Registrant under the Reorganization
Agreement.
(2) Estimated solely for the purpose of computing the registration fee
required by Section 6(b) of the Securities Act of 1933 and computed pursuant
to Rule 457(h)(1) under the Securities Act based upon the weighted average of
the per share exercise price of $0.27 for the Assumed Options.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
The Registrant will send or give the documents containing the
information specified in this Item 1 to employees, officers, directors or
others as specified by Rule 428(b). In accordance with the rules and
regulations of the Securities and Exchange Commission (the "Commission") and
the instructions to Form S-8, the Registrant is not filing such documents
with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Registrant will send you copies of the filings listed in Part II,
Item 3 below, if you write or call Investor Relations, Level One
Communications, Incorporated, 9750 Goethe Road, Sacramento, California 95825,
(916) 855-5000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 28, 1997, filed pursuant to the reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 29, 1998, filed pursuant to the reporting requirements
of the Exchange Act;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 28, 1998, filed pursuant to the reporting requirements of
the Exchange Act;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 27, 1998, as amended on December 16, 1998, filed
pursuant to the reporting requirements of the Exchange Act;
(e) The Registrant's Current Report on Form 8-K, filed with the Commission
on July 17, 1998, as amended on September 21, 1998, October 7, 1998 and
December 16, 1998, pursuant to the reporting requirements of the Exchange
Act;
(f) The Registrant's Current Report on Form 8-K, filed with the Commission
on November 20, 1998, pursuant to the reporting requirements of the
Exchange Act;
(g) The Registrant's Current Report on Form 8-K, filed with the Commission
on December 9, 1998, as amended on February 3, 1999, pursuant to the
reporting requirements of the Exchange Act; and
(h) The description of the Registrant's Common Stock contained in Items 1
and 2 of the Registrant's Registration Statement on Form 8-A filed with the
Commission on July 9, 1993, pursuant to the registration requirements of
the Exchange Act.
All documents subsequently filed with the Commission 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 hereunder have been sold or which deregisters all securities then
remaining unsold under this Registration Statement, shall be deemed to be
incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by
reference herein 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 earlier
statement. Any 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant has provisions in its Certificate of Incorporation which
eliminate the liability of the Registrant's directors to the Registrant and
its stockholders for monetary damages to the fullest extent permissible under
the General Corporation Law of the State of Delaware ("Delaware Law") and
provisions which authorize the Registrant to indemnify its directors,
officers and agents by bylaws, agreements or otherwise, to the fullest extent
permitted by law. Such limitation of liability does not affect the
availability of equitable remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors, officers and certain other agents to the fullest extent permitted
by Delaware Law, including circumstances in which indemnification is
otherwise discretionary under Delaware Law.
In addition, the Registrant has entered into agreements with its
directors and executive officers that will require the Registrant, among
other things, to indemnify them against certain liabilities that may arise by
reason of their service as directors or executive officers to the fullest
extent permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Description of Document
Number
4.1 Certificate of Incorporation of Registrant.
4.2 Bylaws of Registrant.
4.3 Jato Technologies, Inc. 1997 Stock Plan.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).
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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) 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 thereof) 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% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) 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 (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this 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.
(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 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 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 Sacramento, State of California, on
this 3rd day of February, 1999.
LEVEL ONE COMMUNICATIONS, INCORPORATED
By: /s/ Robert S. Pepper
-----------------------------------------
Robert S. Pepper, Ph.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert S. Pepper, Ph.D. and John Kehoe,
jointly and severally, as such person's 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 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 below by the following persons on the
3rd day of February, 1999 in the capacities indicated.
SIGNATURES TITLE
---------- -----
/s/ Robert S. Pepper President, Chief Executive
-------------------------------- Officer and Chairman of the
Robert S. Pepper, Ph.D. Board (Principal Executive
Officer)
/s/ John Kehoe Senior Vice President and Chief
-------------------------------- Financial Officer (Principal
John Kehoe Financial Officer)
/s/ Thomas J. Connors Director
--------------------------------
Thomas J. Connors
/s/ Paul Gray Director
--------------------------------
Paul Gray, Ph.D.
/s/ Martin Jurick Director
--------------------------------
Martin Jurick
/s/ Henry Kressel Director
--------------------------------
Henry Kressel
/s/ Joseph P. Landy Director
--------------------------------
Joseph P. Landy
/s/ Kenneth A. Pickar Director
--------------------------------
Kenneth A. Pickar
INDEX TO EXHIBITS
Exhibit Description of Document
Number Page Number
4.1 Certificate of Incorporation of Registrant.
4.2 Bylaws of Registrant.
4.3 Jato Technologies, Inc. 1997 Stock Plan.
5.1 Opinion of Counsel as to legality of securities being registered.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Counsel (included in Exhibit 5.1).
24.1 Power of Attorney (included on signature page).