Ess Technology Inc - Post-Effective Amendment to an S-8 filing (S-8 POS)
01 7월 2008 - 3:41AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on June 30, 2008
Registration No. 333-89942
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
Form S-8
REGISTRATION STATEMENT
AND
POST-EFFECTIVE AMENDMENT
UNDER
THE SECURITIES ACT OF 1933
ESS TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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94-2928582
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(State or Other
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(IRS Employer
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Jurisdiction of Incorporation)
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Identification No.)
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48401 FREMONT BOULEVARD
FREMONT, CA
(510) 492-1088
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
1997 EQUITY INCENTIVE PLAN
2002 NON-EXECUTIVE STOCK OPTION PLAN
(Full title of the Plan)
Robert Blair
48401 FREMONT BOULEVARD
FREMONT, CA 94538
(510) 492-1088
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Peter Cohn, Esq.
Lowell Ness, Esq.
Orrick, Herrington & Sutcliffe LLP
1000 Marsh Road
Menlo Park, CA 94025
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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EXPLANATORY NOTE
Reincorporation; Assumption of Registration Statement
On June 30, 2008, ESS Technology, Inc., a California corporation (the Predecessor
Registrant), completed a reincorporation to the State of
Delaware pursuant to the agreement and
plan of merger dated February 21, 2008, among Predecessor
Registrant, Registrant, Semiconductor Holding Corporation, a wholly
owned subsidiary of Imperium Master Fund, Ltd.,
(Imperium) and Echo Mergerco, Inc., a wholly owned
subsidiary of Imperium, as approved by the shareholders at the 2008 annual meeting of shareholders held on
June 27, 2008.
This Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (File No.
333-89942), filed with the Securities and Exchange Commission (the Commission) on June 6, 2002 by
the Predecessor Registrant (the Registration Statement), relating to the 1997 Equity Incentive
Plan and 2002 non-Executive Stock Option Plan, is being filed by ESS Technology, Inc.,
a Delaware corporation (the Registrant or the Company) pursuant to Rule 414 under the
Securities Act of 1933, as amended (the Securities Act), as the successor issuer to the
Predecessor Registrant following the reincorporation.
In accordance with Rule 414(d) under the Securities Act, the Registrant, as successor to the
Predecessor Registrant, hereby expressly adopts the Registration Statement as its own for all
purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange
Act).
TABLE OF CONTENTS
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 are
incorporated in this Registration Statement by reference:
(a) The
Predecessor Registrants latest annual report filed pursuant to Section 13(a) or 15(d) of
the Exchange Act;
(b) All
other reports filed by the Predecessor Registrant and Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of
the fiscal year covered by the annual report referred to in (a) above; and
(c) The
description of the Predecessor Registrants common stock, no par value, which is contained in the
Predecessor Registrants Form 8-A Registration Statement filed under Section 12 of the Exchange Act
on October 5, 1995, including any amendment or report filed for the purpose of updating such
description.
All
documents subsequently filed by the Predecessor Registrant and 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 that indicates that all
securities offered have been sold or that deregisters all securities remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be a part of this
Registration Statement 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.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify
directors and officers, as well as other employees and individuals, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by any such person in connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being or having been a
director, officer, employee or agent of the Registrant. The Delaware General Corporation Law
provides that Section 145 is not exclusive of other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the directors duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from
which the director derived an improper personal benefit.
The
bylaws of the Company require the Registrant to indemnify its directors and officers to the maximum
extent permitted by law and the Registrant has entered into indemnification agreements with each
director and officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits have been filed or incorporated by reference as part of this
Registration Statement:
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Exhibit Number
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Document
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5.1
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Opinion of Orrick, Herrington & Sutcliffe LLP, previously
filed as an Exhibit to Form S-8, dated June 6, 2002.
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23.1
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Consent of PricewaterhouseCoopers LLP, an Independent
Registered Public Accounting Firm.
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23.2
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Consent of Orrick, Herrington & Sutcliffe LLP (included in
its opinion referred to in Exhibit 5.1 of this
Registration Statement).
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99.1
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2002 Non-Executive Stock Option Plan. (Incorporated herein
by reference to Exhibit 99.1 to Predecessors Registration
Statement on Form S-8, filed on June 6, 2002.)
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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;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change in such information in
the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to
be included in the post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 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 bonafide 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 Registrants annual report pursuant to Section
13(a) or 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 shall, 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 Act 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 Post-Effective Amendment no. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunder duly authorized, in the City of Fremont, State of
California, on this 30th day of June, 2008.
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By:
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/ s / Robert L. Blair
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Robert L. Blair
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Pursuant to the requirements of the Securities Act of 1933, this Post-Effective Amendment no. 1 to
the Registration Statement has been signed by the following persons in the capacities indicated
below on the 30th day of June, 2008.
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Signature
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Title
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By:
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/ s / Robert L. Blair
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President, Chief Executive Officer and Director (Principal Executive Officer)
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Robert L. Blair
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Ess Tech (DE) Comm (MM) (NASDAQ:ESST)
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