As filed with the Securities and Exchange Commission on June 4, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE
SECURITIES ACT OF 1933
MoSys, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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77-0291941 |
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(State or other jurisdiction of
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(IRS employer
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755 N.
Mathilda Avenue
Sunnyvale, California 94085
(408) 731-1800
(Address of principal executive offices)
New Employee Inducement Grant Program
(Full title of the plan)
James
Sullivan, Chief Financial Officer and Vice President
MoSys, Inc.
755 N. Mathilda Avenue
Sunnyvale, California 94085
(408) 731-1800
(Name and address of agent for service)
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.
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Large accelerated filer o |
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Accelerated filer x |
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Non-accelerated filer o |
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Title Of Securities To Be Registered |
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Amount To Be
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Proposed
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Proposed
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Amount Of
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Common Stock, par value $0.01 per share |
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To be issued under options and restricted stock units granted as inducements to new employees (1) |
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3,700,000 |
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$ |
1.62 |
(3) |
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5,994,000 |
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$ |
334.47 |
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(1) Represents shares issuable upon exercise of options and upon vesting of restricted stock units (“RSUs”) as new hire inducement grants pursuant to Rule 5635(c)(4) of the NASDAQ Stock Market Marketplace Rules (the “Nasdaq Rules”). RSUs do not have an exercise price and are issued only upon vesting in accordance with the terms of the awards.
(2) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional shares of common stock that may be offered or issued by reason of stock splits, stock dividends or similar transactions.
(3) Estimated solely for purposes of calculating the amount of the registration fee. The estimate is made pursuant to Rule 457(c) of the Securities Act. Maximum fee is calculated pursuant to Section 6(b) of the Securities Act.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering a total of 3,700,000 shares of the Registrant’s common stock, par value $0.01 per share, for future issuance upon exercise of stock options or upon vesting of restricted stock units to be granted to new employees of the Registrant pursuant to a new employee inducement grant program in accordance with Rule 5635(c)(4) of the Nasdaq Rules.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information required in Part I will be sent or given to employees, as specified by Rule 428(b)(1) promulgated under the Securities Act. In accordance with the instructions to Part I of Form S-8, such documents will 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 promulgated under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act and are available without charge, upon oral or written request, to: MoSys, Inc., 755 N. Mathilda Avenue, Sunnyvale, California 94085, (408) 731-1800.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
The following documents filed with the SEC by the Registrant are incorporated by reference in this Registration Statement:
1. The Annual Report on Form 10-K for the fiscal year ended December 31, 2008, filed with the SEC on March 13, 2009;
2. All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since December 31, 2008; and
3. The description of the capital stock of the Registrant contained in Amendment No. 7 to the Registration Statement on Form S-1 filed on June 26, 2001 (Registration No. 333-43122) and in the Form 8-A/A filed on December 22, 2004 (Commission File No. 000-32929).
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, are deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents. Any statement contained in this Registration Statement or in a document incorporated by reference shall be deemed modified or superseded to the extent that a statement contained in any subsequently filed document which also is or is deemed to be incorporated by reference herein or therein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof, except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the “DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act. As permitted by the DGCL, our Bylaws provide that the Registrant shall indemnify its directors and officers, and may indemnify its employees and other agents, to the fullest extent permitted by law. The Bylaws also permit the Registrant to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in such capacity, regardless of whether the Bylaws would permit indemnification. The Registrant has obtained officer and director liability insurance with respect to liabilities arising out of certain matters, including matters arising under the Securities Act.
The Registrant also has entered into agreements with its directors and executive officers that, among other things, indemnify them for certain expenses (including attorneys’ fees), judgments, fines and settlement amounts incurred by them in any action or proceeding, including any action by or in the right of the Registrant, arising out of such person’s services as a director or officer of the Registrant, any subsidiary of the Registrant or any other company or enterprise to which the person provides services at the request of the Registrant.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index which is incorporated herein by reference.
Item 9. Undertakings.
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;
(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 to such information in the registration statement;
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Provided however , that paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference 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.
(4) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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 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.
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 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, 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 Sunnyvale, state of California on June 4, 2009.
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MOSYS, INC. |
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By: |
/s/ James W. Sullivan |
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James W. Sullivan |
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Vice President of Finance and Chief Financial Officer |
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POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes and appoints James W. Sullivan, with full power of substitution and resubstitution and full power to act, as his true and lawful attorney-in-fact and agents to act in his name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file, any and all registration statements relating to the same offering that are to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with exhibits thereto and other documents in connection therewith, and any and all amendments to this Registration Statement, including any and all post-effective amendments and amendments thereto, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Leonard Perham |
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Chief Executive Officer, President and Director (principal executive |
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June 4, 2009 |
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Leonard Perham |
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officer) |
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/s/ James W. Sullivan |
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Vice President and Chief Financial Officer (principal financial and |
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June 4, 2009 |
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James W. Sullivan |
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accounting officer) |
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/s/ Carl E. Berg |
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Director |
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June 4, 2009 |
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Carl E. Berg |
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/s/ Tommy Eng |
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Director |
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June 4, 2009 |
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Tommy Eng |
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/s/ Chi-Ping Hsu |
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Director |
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June 4, 2009 |
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Chi-Ping Hsu |
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Director |
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June 4, 2009 |
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James D. Kupec |
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/s/ Chenming Hu |
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Director |
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June 4, 2009 |
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Chenming Hu |
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Exhibit Index
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Exhibit Number |
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Exhibit Description |
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4.1(1) |
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Specimen Common Stock Certificate |
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4.3 (1) |
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Rights Agreement |
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4.3.1 (2) |
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First Amendment to Rights Agreement, dated as of February 23, 2004 |
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4.3.2 (3) |
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Second Amendment to Rights Agreement, dated as of December 14, 2004 |
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4.7 (4) |
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Form of New Employee Inducement Grant Stock Option Agreement |
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4.8 |
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Form of Notice of Restricted Stock Unit Award and Agreement |
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5.1 |
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Opinion of Bingham McCutchen LLP |
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10.1 (1) |
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Form of Indemnity Agreement between the Registrant and each of its directors and executive officers |
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23.1 |
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Consent of Burr, Pilger & Mayer LLP, Independent Registered Public Accounting Firm |
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23.2 |
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Consent of BDO Seidman, LLP, Independent Registered Public Accounting Firm |
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23.3 |
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Consent of Bingham McCutchen LLP (included in Exhibit 5.1) |
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24.1 |
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Power of Attorney (included on the signature page hereto) |
(1) Incorporated by reference to the same-numbered exhibit to the Company’s Registration Statement on Form S-1, as amended, originally filed August 4, 2000, declared effective June 27, 2001 (Commission File No. 333-43122).
(2) Incorporated by reference to Exhibit 9(e)(4) to Schedule 14D-9 filed by the Company on March 22, 2004 (Commission File No. 005-78033).
(3) Incorporated by reference to Exhibit 4.01 to Form 8-K filed by the Company on December 20, 2004 (Commission File No. 000-32929).
(4) Incorporated by reference to Exhibit 10.25 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2007, filed with the Securities and Exchange Commission on March 17, 2008 (Commission File No. 000-32929).
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Exhibit 4.8
MOSYS, INC.
NOTICE OF RESTRICTED STOCK UNIT AWARD AND AGREEMENT
Name of Employee:
Award Date:
Number of RSUs:
Vesting Schedule:
Vesting Commencement Date:
Term:
MoSys, Inc. (the “ Company ”) has granted you (the “ Participant ”) an award of the number of Restricted Stock Units (“ RSUs ”) to obtain shares of the Company’s common stock, par value $0.01 per share (the “ Common Stock ”), as set forth above in this Notice of Restricted Stock Unit Award and Agreement (the “ Agreement ”). The RSUs are granted as an inducement material to the individual’s entering into employment with the Company within the meaning of Rule 5365(c)(4) of the Nasdaq Marketplace Rules, and in all respects are subject to such continued employment or other association and all other terms and conditions of this Agreement.
1. Definitions
“Agreement” means this Restricted Stock Unit Award and Agreement.
“Board of Directors” means the Board of Directors of the Company.
“Code” means the Internal Revenue Code of 1986, as amended.
“Committee” means the Compensation Committee of the Board of Directors.
“Consultant” means any independent contractor retained to perform services for the Company or a Subsidiary.
“Continuous Service” means the absence of any interruption or Termination of Service (a) in the case of an Employee, as an Employee, and (b) in the case of a Director or Consultant, as a Director or Consultant of the Company, a Parent, or any Subsidiary. Continuous Service shall not be considered interrupted during any period of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company and any Parent, Subsidiary or successor of the Company. A leave of absence approved by the Company shall include sick leave, military leave or any other personal leave approved by an authorized representative of the Company.
“Corporate Transaction” means any of the following stockholder-approved
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transactions to which the Company is a party:
(a) a merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the state in which the Company is incorporated;
(b) the sale, transfer or other disposition of all or substantially all of the assets of the Company (including the capital stock of each Subsidiary) in connection with the complete liquidation or dissolution of the Company; or
(c) any reverse merger in which the Company is the surviving entity but in which the beneficial ownership of securities possessing 50 percent or more of the total combined voting power of the Company’s outstanding securities are transferred to a person or persons different from those who held such securities immediately prior to such merger. For this purpose, “beneficial ownership” refers to ownership of a security, directly or indirectly, by any person or entity who through any contract, arrangement, understanding, relationship or otherwise has or shares (1) voting power, which includes the power to vote, or to direct the voting of, such security, and/or (2) investment power, which include the power to dispose, or to direct the disposition of, such security, and shall be determined in accordance with Rule 13d-3 of the General Rules and Regulations under the Exchange Act.
“Director” means a director of the Company.
“Employee” means any person, including officers (whether or not they are directors), employed by the Company, a Parent or any Subsidiary.
“Exchange Act” means Securities Exchange Act of 1934, as amended.
“Fair Market Value” of Common Stock as of any date is the closing price for the Common Stock as reported on the NASDAQ Global Market (or on any other national securities exchange or other established market on which the Common Stock is then listed) for that date or, if no closing price is reported for that date, the closing price on the next preceding date for which a closing price was reported.
“Non-Employee Director” means a Director of the Company who qualifies as a Non-Employee Director as such term is defined in Section 240.16b-3(b)(3) of the General Rules and Regulations promulgated under the Exchange Act.
“Parent” means a parent corporation of the Company, whether now or hereafter existing, as defined by Section 424(e) of the Code.
“ RSUs ” means Restricted Stock Units representing rights to receive shares of Common Stock.
“Subsidiary” means a subsidiary corporation of the Company, whether now or hereafter existing, as defined in Section 424(f) of the Code.
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“Termination of Service” means (a) in the case of an Employee, a cessation of the employee-employer relationship between the Employee and the Company or a Parent or Subsidiary for any reason, including, but not by way of limitation, a termination by resignation, discharge, death, disability, or the disaffiliation of a Parent or Subsidiary, but excluding any such termination where there is a simultaneous reemployment by the Company or a Parent or Subsidiary; (b) in the case of a Consultant, a cessation of the service relationship between the Consultant and the Company or a Parent or Subsidiary for any reason, including, but not by way of limitation, a termination by resignation, discharge, death, disability, or the disaffiliation of a Parent or Subsidiary, but excluding any such termination where there is a simultaneous re-engagement of the Consultant by the Company or a Parent or Subsidiary; and (c) in the case of a Director, a cessation of the Director’s service on the Board of Directors for any reason, including, for example, but not by way of limitation, a termination by resignation, removal, death, disability, expiration of the term of directorship, but excluding any such termination where there is a simultaneous reemployment by the Company or a Parent or Subsidiary.
2. Vesting
No portion of the shares of Common Stock that the Participant is entitled to receive will be issued until such portion has vested. The RSUs shall vest in accordance with the Vesting Schedule as provided above in this Agreement, provided in each case that the Participant is then, and since the Award Date has remained, in Continuous Service.
3. Issuance of Common Stock
(a) Each vested RSU entitles the Participant to receive one share of Common Stock.
(b) As soon as practicable after each applicable anniversary of the Vesting Commencement Date, the Participant’s name shall be entered as the stockholder of record on the books and records of the transfer agent for the Company with respect to the shares of Common Stock underlying the vested RSUs upon compliance to the satisfaction of the Committee with all requirements under applicable laws or regulations in connection with such issuance and with the requirements of this Agreement. The determination of the Committee as to such compliance shall be final and binding on the Participant.
(c) Until such time as shares of Common Stock have been issued to the Participant pursuant to Section 3(b) above, the Participant shall not have any rights as a holder of shares of Common Stock underlying the RSUs, including, but not limited to, voting rights, rights to receive dividends and other distributions with respect to Common Stock, and stockholder inspection rights.
4. Termination of Continuous Service
The Participant’s right in any RSUs that are not vested as of the date on which the Participant’s Continuous Service has ceased shall automatically terminate on such date, and such RSUs shall be canceled and shall be of no further force and effect. In the event of termination of
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Continuous Service, the Company, as soon as practicable following the effective date of termination, shall issue shares of Common Stock to the Participant (or the Participant’s designated beneficiary or estate executor in the event of Participant’s death) with respect to any RSUs which, as of the effective date of termination of Continuous Service, have vested but for which shares of Common Stock had not yet been issued to the Participant.
5. Adjustments
If, from time to time during the term of this Agreement: (i) there is any stock dividend, distribution or dividend of cash or property, stock split, or other change in the character or amount of any of the outstanding securities of the Company; or (ii) there is any consolidation, merger or sale of all, or substantially all, of the assets of the Company; then in such event, any and all new, substituted or additional securities, cash or other property that Participant would receive, or to which the Participant would be entitled, by reason of the Participant’s ownership of any shares of Common Stock issuable pursuant to the RSUs then held by the Participant, shall be immediately subject to the provisions of Section 2 and be deemed subject to the RSUs for all purposes with the same force and effect as the shares of Common Stock presently subject to this Agreement.
Subject to the terms of any other written agreement between the Participant and the Company related to the Participant’s employment by or other association with the Company, the Committee may, if it so determines in the exercise of its sole discretion, also make provision for proportionately adjusting the number or class of securities covered by the RSUs, as well as the price to be paid therefor, in the event that the Company effects one or more Corporate Transactions or other increases or reductions of shares of its outstanding Common Stock.
6. Transferability
This Agreement is personal to the Participant, is non-assignable, and is not transferable in any manner, by operation of law, or otherwise, other than by will or the laws of descent and distribution. This Award is available, during the Participant’s lifetime, only to the Participant, and thereafter, only to the Participant’s designated beneficiary.
7. Tax Withholding
The Participant shall not later than the date as of which the Award becomes a taxable event for Federal income tax purposes, pay to the Company or make arrangements satisfactory to the Company for payment of any Federal, state, and local taxes required by law to be withheld on account of such taxable event. The Participant may elect to have the minimum tax withholding obligation satisfied, in whole or in part, by (i) authorizing the Company to withhold from shares of Common Stock to be issued, or (ii) authorizing the Company to deduct cash payments from the Participant’s regularly scheduled payroll distributions that would satisfy the minimum required tax withholding amount due.
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8. Tax Consequences
The Company makes no representation or warranty as to the tax treatment to the Participant of the Participant’s receipt of the Award or vesting of RSUs or upon Participant’s sale or other disposition of the Common Stock issued pursuant to the RSUs. The Participant should rely on his or her own tax advisors for all such advice.
9. Miscellaneous
(a) Notice under this Agreement shall be given to the Company at its principal place of business, and shall be given to the Participant at the address set forth below, or in either case at such other address as one party may subsequently furnish to the other party in writing.
(b) This Agreement does not confer upon the Participant any rights with respect to continuation of employment by the Company or any of its Subsidiaries.
(c) The Committee may amend the terms of this Agreement, prospectively or retroactively, but no such amendment shall impair the Participant’s rights under this Agreement without the Participant’s consent.
(d) This Agreement shall be construed and enforced in accordance with the laws of California, without regard to the conflicts of laws principles thereof.
(e) This Agreement shall be binding upon and inure to the benefit of any successor or assign of the Company and any executor, administrator, trustee, guardian or other legal representative of the Participant.
(f) This Agreement may be executed in counterparts. This Agreement constitutes the entire agreement between the parties relative to the subject matter of this Agreement, and supersedes all communications, whether written or oral, relating to the subject matter of this Agreement.
THIS AGREEMENT is binding upon the parties and entered into effective as of the date set forth in this Agreement.
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ACKNOWLEDGEMENT BY PARTICIPANT
Participant acknowledges receipt of copies of the Agreement and represents that he is familiar with the terms and provisions thereof, and hereby accepts the RSUs subject to all of the terms and provisions of the Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Agreement.
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Participant |
Date: , 2009
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, , spouse/domestic partner of the Participant who executed the foregoing Agreement, hereby agree that my spouse’s/domestic partner’s interest in the RSUs subject to said Agreement shall be irrevocably bound by the Agreement’s terms. I further agree that my community property interest in such RSUs, if any, shall similarly be bound by said Agreement and that such consent is binding upon my executors, administrators, heirs and assigns. I agree to execute and deliver such documents as may be necessary to carry out the intent of said Agreement and this consent.
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Spouse/Domestic Partner |
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Exhibit 5.1
June 4, 2009
MoSys, Inc.
755 N. Mathilda Avenue
Sunnyvale, California 94085
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for MoSys, Inc., a Delaware corporation (the “Company”), in connection with the preparation of the Company’s Registration Statement on Form S-8 proposed to be filed with the Securities and Exchange Commission on or about June 4, 2009 (the “Registration Statement”).
The Registration Statement covers the registration of 3,700,000 shares of common stock, par value $0.01 per share, of the Company (the “Shares”), which are issuable by the Company upon exercise of stock options or vesting of restricted stock units granted to new employees as new hire inducement grants pursuant to Nasdaq Marketplace Rule 5635(c)(4) (the documents governing the new hire inducement grants are collectively referred to in this opinion as the “Plan”).
We have reviewed the corporate proceedings of the Company with respect to the authorization of the Plan. We have reviewed copies of the Plan as currently in effect. We have also examined and relied upon such agreements, instruments, corporate records, certificates, and other documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In our examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form, and the legal competence of each individual executing any document.
We further assume, without investigation, that all Shares issued pursuant to the Plan will be issued in accordance with the terms of the Plan and that the purchase price of each of the Shares will be at least equal to the par value of such Shares.
This opinion is limited solely to the Delaware General Corporation Law as applied by courts located in Delaware, the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting those laws.
Based upon and subject to the foregoing, we are of the opinion that the Shares, when issued and delivered upon the exercise of options or vesting of restricted stock units granted pursuant to and in accordance with the Plan and against the payment of any purchase price therefor, as specified in the Plan or documents governing such awards, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, however, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933, as amended.
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Very truly yours, |
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/s/ BINGHAM MCCUTCHEN LLP |
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BINGHAM MCCUTCHEN LLP |
EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 13, 2009 relating to the consolidated financial statements and financial statement schedule of MoSys, Inc. as of December 31, 2008 and 2007 and for each of the two years in the period ended December 31, 2008 and the effectiveness of internal control over financial reporting as of December 31, 2008, which appear in the Annual Report on Form 10-K of MoSys, Inc. for the year ended December 31, 2008.
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/s/ Burr, Pilger & Mayer LLP |
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San Jose, California |
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June 3, 2009 |
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EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
MoSys, Inc.
Sunnyvale, California
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 12, 2007, relating to the consolidated financial statements and financial statement schedule of MoSys, Inc. for the year ended December 31, 2006 appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2008.
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/s/ BDO Seidman, LLP |
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San Francisco, California |
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June 3, 2009 |
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