As filed with the Securities and Exchange Commission on February 10, 2003.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DSP GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
94-2683643 |
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(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
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3120 Scott Boulevard, Santa Clara, CA |
95054 |
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(Address of Principal Executive Offices) |
(Zip Code) |
DSP GROUP, INC.
2003 Israeli Share Option Plan
(Full Title of the Plan)
Eliyahu Ayalon
Chairman of the Board and Chief Executive Officer
DSP Group, Inc.
3120 Scott Boulevard
Santa Clara, CA 95054
(Name and Address of Agent For Service)
408/986-4300
(Telephone Number, Including Area Code,
of Agent For Service)
With a copy to:
Bruce Alan Mann, Esq.
Morrison & Foerster LLP
425 California Street
San Francisco, CA 94105
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered |
Number of Shares to be Registered |
Proposed Maximum Offering Price per Share |
Proposed Maximum Aggregate Offering Price |
Amount of Registration Fee |
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Common Stock |
1,500,000(1) |
$16.045(2) |
$24,067,500(2) |
$2,214.21(2) |
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| (1) | This total represents the amount of shares authorized to be issued under the Registrant’s 2003 Israeli Share Option Plan. |
| (2) | Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933 on the basis of the average of the high and low price per share of DSP Group Inc.’s Common Stock on the Nasdaq National Market on February 7, 2003. |
Part I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 (plan information and registrant information and employee plan annual information) will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such document need not be filed with the Securities and Exchange Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION
Item 3. Incorporation of Certain Documents by Reference
DSP Group, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “SEC”):
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2001 filed with the SEC on March 22, 2000, which includes audited financials for the Registrant’s latest fiscal year. |
| (b) | All other reports filed by the Registrant 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 audited financial statements described in (a) above. |
| (c) | The Registrant’s Registration Statement No. 000-23006 on Form 8-A filed with the SEC on December 3, 1993, in which there is described the terms, rights and provisions applicable to the Registrant’s outstanding Common Stock. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained 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 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
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
II-1
Item 6. Indemnification of Directors and Officers
Under Section 145 of the Delaware General Corporation Law, the Registrant has broad powers to indemnify its directors and officers against liabilities that they may incur in such capacities, including liabilities under the Securities Act. The Registrant’s Bylaws also provide for mandatory indemnification of its directors and executive officers, to the fullest extent permissible under Delaware law.
The Registrant’s Certificate of Incorporation limits the liability of directors to the maximum extent permitted by Delaware law. Delaware law provides that directors of a company will not be personally liable to the company or its stockholders for monetary damages for breach of their fiduciary duties as directors, except liability for (a) any breach of their duty of loyalty to the company or its stockholders, (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) unlawful payments of dividends or unlawful stock repurchases or redemptions or (d) any transaction from which the directors derived an improper personal benefit. The Certificate of Incorporation also provides that the Registrant shall indemnify any director or officer to the maximum extent provided by Delaware law, and that such right of indemnification shall continue as to a person who has ceased to be a director or officer of the Registrant. Responsibility for determinations with respect to such indemnification will be made by the Board of Directors.
In addition, the Registrant has entered into indemnity agreements with its directors and certain of its executive officers that require the Registrant to indemnify such persons against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or officer of the Registrant or any of its affiliated enterprises, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder.
The Registrant has obtained a policy of directors’ and officers’ liability insurance that insures the Registrant’s directors and officers against the cost of defense, settlement or payment of a judgement under certain circumstances.
Item 7. Exemption from Registration Claimed
Not Applicable.
II-2
Item 8. Exhibits
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Exhibit No. |
Description |
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5.1 |
Opinion of Morrison & Foerster LLP as to the legality of the securities being registered. |
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23.1 |
Consent of Kost, Forer & Gabbay, a member of Ernst & Young Global, independent auditors. |
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23.2 |
Consent of Morrison & Foerster LLP (contained in the opinion of counsel filed as Exhibit 5.1 to this Registration Statement). |
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24.1 |
Power of Attorney (set forth on the signature page of this Registration Statement). |
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, 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, 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 this 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 the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended 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 Santa Clara, State of California, on February 10, 2003.
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DSP GROUP, INC. |
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By: |
/s/ Eliyahu Ayalon |
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Eliyahu Ayalon Chairman of the Board and Chief Executive Officer |
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POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Each person whose signature appears below constitutes and appoints Eliyahu Ayalon and Moshe Zelnik, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstituiton, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do so 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 said attorneys-in-fact and agents or their substitutes, may lawfully do or cause to be done by virtue thereof.
Further, 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 date indicated.
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Signature |
Title |
Date |
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/s/ Eliyahu Ayalon Eliyahu Ayalon |
Chairman of the Board and Chief Executive Officer (Principal Executive Officer) |
February 10, 2003 |
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/s/ Moshe Zelnik Moshe Zelnik |
Vice President of Finance, Chief Financial Officer and Secretary (Principal Financial Officer and Principal Accounting Officer) |
February 10, 2003 |
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/s/ Zvi Limon Zvi Limon |
Director |
February 10, 2003 |
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/s/ Yair Shamir Yair Shamir |
Director |
February 10, 2003 |
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/s/ Yair Seroussi Yair Seroussi |
Director |
February 10, 2003 |
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/s/ Louis Silver Louis Silver |
Director |
February 10, 2003 |
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/s/ Patrick Tanguy Patrick Tanguy |
Director |
February 10, 2003 |
II-5
Exhibit Index
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Exhibit No. |
Description |
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5.1 |
Opinion of Morrison & Foerster LLP as to the legality of the securities being registered. |
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23.1 |
Consent of Kost, Forer & Gabbay, a member of Ernst & Young Global. |
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23.2 |
Consent of Morrison & Foerster LLP (contained in the opinion of counsel filed as Exhibit 5.1 to this Registration Statement). |
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24.1 |
Power of Attorney (set forth on the signature page of this Registration Statement). |
Exhibit 5.1
February 10, 2003
DSP Group, Inc.
3120 Scott Boulevard
Santa Clara, California 95054
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to be filed by DSP Group, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) on February 10, 2003 (the “Registration Statement”), in connection with the registration under the Securities Act of 1933, as amended, of 1,500,000 shares of the Company’s Common Stock, $0.001 par value (the “Common Stock”) reserved for issuance under the Company’s 2003 Israeli Share Option Plan (the “2003 Plan”).
As counsel to the Company, we have examined the proceedings taken by the Company in connection with the reservation of these 1,500,000 shares of Common Stock for issuance under the 2003 Plan.
It is our opinion that the 1,500,000 shares of Common Stock which may be issued and sold by the Company pursuant to the 2003 Plan, when issued and sold in the manner referenced in the Registration Statement, will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us in the Registration Statement and any further amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
Morrison & Foerster LLP
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 2003 Israeli Share Option Plan of DSP Group, Inc. of our report dated January 22, 2002 (except for Note 9, as to which the date is March 15, 2002), with respect to the consolidated financial statements of DSP Group, Inc. for the two-year period ended December 31, 2001 included in the Annual Report (Form 10-K) for the year ended December 31, 2001.
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/s/ Kost, Forer & Gabbay |
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Kost, Forer & Gabbay |
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A Member of Ernst & Young Global |
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Tel-Aviv, Israel
February 10, 2003