As filed with the Securities and Exchange Commission on July 28, 2010
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)
MoSys, Inc. 2010 Equity Incentive Plan
MoSys, Inc. 2010 Employee Stock Purchase Plan
(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 o |
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Non-accelerated filer
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Smaller reporting company x |
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 $0.01 per share |
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To be issued under the MoSys, Inc. 2010 Equity Incentive Plan |
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2,497,711 |
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$ |
4.61 |
(4) |
$ |
11,514,448 |
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$ |
820.98 |
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To be issued under the MoSys, Inc. 2010 Equity Incentive Plan (1) |
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1,502,289 |
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$ |
— |
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$ |
— |
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$ |
— |
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To be issued under the MoSys, Inc. 2010 Employee Stock Purchase Plan |
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1,578,472 |
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$ |
4.61 |
(4) |
$ |
7,276,756 |
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$ |
518.83 |
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To be issued under the MoSys, Inc. 2010 Employee Stock Purchase Plan (2) |
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421,528 |
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— |
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$ |
— |
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$ |
— |
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TOTAL: |
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6,000,000 |
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$ |
18,791,204 |
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$ |
1,339.81 |
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(1) Represents shares of the Common Stock of MoSys, Inc. (the “Registrant”) that were previously registered for issuance under the MoSys, Inc. Amended and Restated 2000 Stock Option and Equity Incentive Plan and that remained available for future awards as of the termination of such plan on June 30, 2010. Pursuant to Rule 457(p) under the Securities Act, the registration fee previously paid with respect to such shares is being carried forward and applied to the registration of shares hereunder. Accordingly, no registration fee with respect to such shares is being paid at this time.
(2) Represents shares of the Registrant’s Common Stock that were previously registered for issuance under the MoSys, Inc. 2000 Employee Stock Purchase Plan and that remained available for issuance as of the termination of such plan on June 30, 2010. Pursuant to Rule 457(p) under the Securities Act, the registration fee previously paid with respect to such shares is being carried forward and applied to the registration of shares hereunder. Accordingly, no registration fee with respect to such shares is being paid at this time.
(3) In addition, pursuant to Rule 416(c) 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.
(4) Estimated solely for purposes of calculating the amount of the registration fee. The estimate is made pursuant to Rule 457(c) and (h)(1) 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 covers the registration of an aggregate of 6,000,000 shares of the Registrant’s Common Stock which may be offered pursuant to the MoSys, Inc. 2010 Equity Incentive Plan or the MoSys, Inc. Employee Stock Purchase Plan. Of the 6,000,000 shares of Common Stock being registered hereunder, 1,923,817 shares (the “Prior Shares”) are carried forward from registration statements on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “SEC”) on June 29, 2001 (333-64302), March 27, 2003 (333-104071), September 15, 2004 (333-118992), March 16, 2005 (333-123364), March 16, 2006 (333-132492), March 13, 2007 (333-141264), March 17, 2008 (333-149756) and March 16, 2009 (333-157964) (collectively, the “Prior Registration Statements”). 1,502,289 of the Prior Shares were originally registered for issuance pursuant to the MoSys, Inc. Amended and Restated 2000 Stock Option and Equity Incentive Plan (the “Prior Incentive Plan”), and the filing fee paid by the Registrant with respect to the registration of such shares was $63.26. The remaining 421,578 Prior Shares were originally registered for issuance pursuant to the MoSys, Inc. 2000 Employee Stock Purchase Plan (the “Prior ESPP,” and together with the Prior Incentive Plan, the “Prior Plans”), and the filing fee paid by the Registrant with respect to the registration of such shares was $37.87.
Both of the Prior Plans were terminated on June 30, 2010. Accordingly, on July 27, 2010, the Registrant filed a post-effective amendment to each of the Prior Registration Statements in order to remove from registration the Prior Shares covered by such Prior Registration Statement. The post-effective amendments described the Registrant’s intention to carry forward the Prior Shares and the associated filing fees to this newly filed Registration Statement, in accordance with Instruction E of Form S-8 and the guidance provided by the Division of Corporation Finance under G.89 of the Manual of Publicly Available Telephone Interpretations.
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 participating in the Plans, 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.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference
With respect to the registration of the shares issuable pursuant to the 2010 Equity Incentive Plan and 2010 Employee Stock Purchase Plan, the following documents are incorporated by reference into this Registration Statement:
1. The Annual Report on Form 10-K and Form 10-K/A for the fiscal year ended December 31, 2009, filed by the Registrant with the Securities and Exchange Commission (the “SEC”) on March 26, 2010 and April 30, 2010, respectively;
2. The Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, filed by the Registrant with the SEC on May 12, 2010;
3. All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act filed by the Registrant after December 31, 2009; and
4. 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.
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 any person who is made a party to any third-party action, suit or proceeding (other than an action by or in the right of the corporation) on account of being a current or former director, officer, employee or agent of the corporation (or serving at the request of the corporation in such capacity for another corporation, partnership, joint venture, trust or other enterprise) against expenses, including attorney’s fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit or proceeding, if (1) the person acted in good faith and in a manner reasonably believed to be in the best interests of the corporation (or in some circumstances, at least not opposed to its best interests), and (2) in a criminal action or proceeding, the person had no reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits indemnification by a corporation under similar circumstances for expenses (including attorneys’ fees) actually and reasonably incurred by such persons in connection with the defense or settlement of a derivative action or suit, except that no indemnification may be made in respect of any claim, issue or matter as to which the person is adjudged to be liable to the corporation unless the Delaware Court of Chancery or the court in which the action or suit was brought determines upon application that the person is fairly and reasonably entitled to indemnity for the expenses which the court deems to be proper. To the extent that a current or former director, officer, employee or agent is successful in the defense of such an action, suit or proceeding, the corporation is required by the DGCL to indemnify such person for reasonable expenses incurred thereby. Expenses (including attorneys’ fees) incurred by such persons in defending any action, suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of that person to repay the amount if it is ultimately determined that person is not entitled to be so indemnified.
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;
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.
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 July 28, 2010.
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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 |
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes and appoints Leonard Perham and James W. Sullivan, and each of them, 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 officer) |
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July 28, 2010 |
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Leonard Perham |
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/s/ James W. Sullivan |
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Vice President and Chief Financial Officer (principal financial and accounting officer) |
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July 28, 2010 |
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James W. Sullivan |
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/s/ Carl E. Berg |
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Director |
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July 28, 2010 |
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Carl E. Berg |
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/s/ Tommy Eng |
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Director |
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July 28, 2010 |
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Tommy Eng |
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/s/ Chi-Ping Hsu |
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Director |
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July 28, 2010 |
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Chi-Ping Hsu |
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/s/ James D. Kupec |
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Director |
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July 28, 2010 |
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James D. Kupec |
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Exhibit Index
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Exhibit
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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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4.8 (2) |
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MoSys, Inc. 2010 Equity Incentive Plan |
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4.9 (3) |
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MoSys, Inc. 2010 Employee Stock Purchase Plan |
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4.10 |
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Form of Option Agreement for Stock Option Grant pursuant to the MoSys, Inc. 2010 Equity Incentive Plan |
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5.1 |
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Opinion of Bingham McCutchen LLP |
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23.1 |
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Consent of Burr Pilger Mayer, Inc., Independent Registered Public Accounting Firm |
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23.2 |
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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 Registrant’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 Appendix A to the Registrant’s proxy statement on Schedule 14A filed with the Securities and Exchange Commission on May 26, 2010 (Commission File No. 000-32929).
(3) Incorporated by reference to Appendix B to the Registrant’s proxy statement on Schedule 14A filed with the Securities and Exchange Commission on May 26, 2010 (Commission File No. 000-32929).
Exhibit 4.10
STOCK OPTION GRANT PURSUANT TO THE
MOSYS, INC. 2010 EQUITY INCENTIVE PLAN
Date of Grant: [ ], 20
[ ] (the “Optionee”):
MoSys, Inc., a Delaware corporation (the “Company”), has granted to Optionee, an option (“Option”) to purchase a total of [ ] ([ ]) fully paid, nonassessable shares (“Shares”) of common stock of the Company, par value $0.01 per share (“Common Stock”), at the price set forth herein, and in all respects subject to the terms, definitions and provisions of the Company’s 2010 Equity Incentive Plan (“Plan”). The terms and provisions of the Plan are incorporated herein by reference and all capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Plan, and in the event of any conflict between the terms and provisions herein and those of the Plan, the terms and provisions of the Plan, including, without limitation, the powers of the Committee thereunder, shall prevail and be controlling.
THE DETAILS OF YOUR OPTION ARE AS FOLLOWS:
1. Nature Of The Option
The Option is intended to be a Nonstatutory Option.
2. Option Price
The exercise price of the Option (“Option Price”) is $[ ] for each Share.
3. Vesting And Exercise Of Option
a. Subject to the Optionee’s continued employment or other association with the Company, the Option will vest and become exercisable during its term as to one-fourth (1/4) of the Shares subject to the Option at the first anniversary of , 20 (“Vesting Commencement Date”) and as to one thirty-sixth (1/36) of the remaining Shares subject to the Option monthly thereafter (with being the first such date) until all of the Shares have vested.
b. In the event of the Optionee’s death, disability or other termination of employment, the Option shall be exercisable in the manner and to the extent provided in Section 6.3 of the Plan.
c. No fraction of a Share shall be purchasable or deliverable upon exercise, but in the event any adjustment of the number of Shares covered by the Option shall cause such
number to include a fraction of a Share, such number of Shares shall be adjusted to the nearest smaller whole number of Shares.
d. In order to exercise any portion of this Option which has vested, the Optionee shall notify the Company in writing of the election to exercise the Option and the number of Shares in respect of which the Option is being exercised, by executing and delivering the Notice of Exercise of Stock Option in the form attached hereto as Appendix I . The certificate or certificates representing Shares as to which this Option has been exercised shall be registered in the name of the Optionee.
4. Non-Transferability Of Option
This Option may not be transferred other than by will or by the laws of descent and distribution; provided, however, that the Optionee may transfer the Option to a family member if the transfer has first been approved by the Committee, acting in its sole discretion, is without payment and otherwise complies with the terms and conditions set forth in Section 6.4 of the Plan. The terms of this Option shall be binding upon the executors, administrators, heirs and successors of the Optionee.
5. Method Of Payment
Payment of the exercise price shall be by any of the following, or a combination thereof, at the election of the Optionee:
a. cash;
b. check, cashier’s check, certified check or wire transfer;
c. as long as there is a public market for the Common Stock on the date of exercise, by delivery of a sell order to a broker for the shares being purchased and an agreement to pay (or have the broker remit payment for) the purchase price of the shares being purchased on or before the settlement date for the sale of such shares to the broker; or
d. as long as there is a public market for the Common Stock on the date of exercise, by surrender of shares of Common Stock, provided that if such shares were acquired upon exercise of an Incentive Option, the Optionee must have first satisfied the holding period requirements under Section 422(a)(1) of the Internal Revenue Code of 1986, as amended (the “Code”). In this case payment shall be made as follows:
i. The Optionee shall deliver to the Secretary of the Company a written notice which shall set forth the portion of the purchase price the Optionee wishes to pay with Common Stock, and the number of shares of such Common Stock the Optionee intends to surrender pursuant to the exercise of this Option, which shall be determined by dividing the aforementioned portion of the purchase price by the closing price per share of the Common Stock of the Company, 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), on
the last business day immediately preceding the date of exercise of the Option, as determined by the Committee;
ii. Fractional shares shall be disregarded and the Optionee shall pay in cash an amount equal to such fraction multiplied by the price determined under subparagraph (i) above;
iii. The written notice shall be accompanied by a duly endorsed blank stock power with respect to the number of Shares set forth in the notice, and the certificate(s) representing said Shares shall be delivered to the Company at its principal offices within three working days from the date of the notice of exercise;
iv. The Optionee hereby authorizes and directs the Secretary of the Company to transfer so many of the Shares represented by such certificate(s) as are necessary to pay the purchase price in accordance with the provisions herein; and
v. Notwithstanding any other provision herein, the Optionee shall only be permitted to pay the purchase price with shares of Common Stock owned by him as of the exercise date in the manner and within the time periods allowed under 17 CFR Section 240.16b-3 promulgated under the Securities Exchange Act of 1934, as amended (“Exchange Act”), as such regulation is presently constituted, as it is amended from time to time, and as it is interpreted now or hereafter by the Securities and Exchange Commission.
Furthermore, in all events, the Optionee’s selection of means of payment of the exercise price is subject to the Optionee’s compliance with the Company’s Insider Trading Policy.
6. Adjustments Upon Changes in Capitalization and Corporate Transactions
The number of Shares covered by this Option, and the per share Option Price of this Option, are subject to adjustment in accordance with the provisions of Section 8 of the Plan in the event of certain changes in the capitalization or organization of the Company. In the event of a Corporate Transaction, the Committee, in its sole and absolute discretion, may take any one or more of the actions set forth in Section 8.4 of the Plan with respect to the Option.
7. Term Of Option
This Option may not be exercised more than six years from the date of grant of this Option, as set forth above, and may be exercised during such term only in accordance with the Plan and the terms of this Option.
8. No Employment Contract
Nothing in this Agreement or in the Plan shall confer upon the Optionee any right to continue in the employ or other service with the Company or any Affiliate or shall interfere with or restrict in any way the rights of the Company (or any Affiliate), which are hereby expressly reserved, to discharge the Optionee at any time for any reason whatsoever, with or without cause, subject to the provisions of applicable law. This is not an employment contract.
9. Income Tax Withholding
a. The Optionee authorizes the Company to withhold in accordance with applicable law from any compensation payable to him or her any taxes required to be withheld by Federal, state or local laws as a result of the exercise of this Option in accordance with Section 9.7 of the Plan. The Optionee further authorizes the Company to satisfy the applicable withholding requirement upon such an exercise, in whole or in part, by having the Company withhold a number of Shares having a Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction and sell those Shares into the public market through a broker transaction with the net proceeds remitted to the Company. All elections shall be irrevocable, made in writing, signed by the Optionee, and shall be subject to any restrictions or limitations that the Committee deems appropriate. The Optionee agrees to notify the Company immediately in the event of any disqualifying disposition (within the meaning of Section 421(b) of the Code) of the shares acquired upon exercise of an Incentive Option. Furthermore, in the event of any determination that the Company has failed to withhold a sum sufficient to pay all withholding taxes due in connection with the exercise of this Option, or a disqualifying disposition of the shares acquired upon exercise of an Incentive Option, the Optionee agrees to pay the Company the amount of such deficiency in cash within five days after receiving a written demand from the Company to do so, whether or not Optionee is an employee of the Company at that time.
b. At such time as the Optionee is required to pay to the Company an amount with respect to tax withholding obligations as set forth in Section 9.7, the Optionee may elect prior to the date the amount of such withholding tax is determined to make such payment, or such increased payment as the Optionee elects to make up to the maximum federal, state and local marginal tax rates (including any related FICA obligation) applicable to the Optionee and the particular transaction in accordance with the provisions of Section 9.7 of the Plan.
c. Any adverse consequences incurred by an Optionee with respect to the use of shares of Common Stock to pay any part of the Option Price or of any tax in connection with the exercise of the Option, including, without limitation, any adverse tax consequences arising as a result of a disqualifying disposition within the meaning of Section 422 of the Code, shall be the sole responsibility of the Optionee.
10. Conditions Upon Issuance of Shares
Shares shall not be issued with respect to the Option unless the exercise of the Option and the issuance and delivery of such Shares pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange or public trading market upon which the Shares may then be listed, and may be further subject to obtaining an opinion of counsel for the Company with respect to such compliance. As a condition to the exercise of the Option, the Company may require the Optionee to render such representations and warranties as the Company may deem necessary or appropriate for compliance with applicable securities laws, rules and regulations, including but not limited to the representation that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares. All certificates for shares of Common Stock or other securities delivered under the Plan shall be subject to such stock transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other requirements of any stock exchange upon which the Stock is then listed, and any applicable federal or state securities law, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions. If the Company so requests in connection with any underwritten public offering of securities, the Optionee (a) shall not sell, make any short sale of, loan, grant any option for the purchase of, pledge or otherwise encumber, or otherwise dispose of any Shares during a period not to exceed 180 days commencing on the effective date of the registration statement relating to such offering, without the prior written consent of the Company or the managing underwriter of the offering, and (b) shall agree in writing to the foregoing restrictions in one or more written instruments as the Company may request from time to time.
11. Notices and Other Communications
Any notice, demand, request or other communication hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or duly sent by first class registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to the Optionee, at his or her residence address last filed with the Company and (ii) if to the Company, at its principal place of business, addressed to the attention of its Chief Financial Officer, or to such other address or telecopier number or electronic mail address, as the case may be, as the addressee may have designated by written notice to the addressor. All such notices, requests, demands and other communications shall be deemed to have been received: (i) in the case of personal delivery, on the date of such delivery; (ii) in the case of mailing, when received by the addressee; (iii) in the case of facsimile transmission, when confirmed by facsimile machine report; and (iv) in the case of electronic mail, when directed to an electronic mail address at which the receiving party has consented to receive notice, provided, that such consent is deemed revoked if the sender is unable to deliver by electronic transmission two consecutive notices and such inability becomes known to the secretary or assistant secretary of the Company or to the transfer agent, or other person responsible for giving notice.
Dated the day of , 20 .
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MOSYS, INC. |
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By: |
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Its: |
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Duly authorized on behalf of the Board of Directors |
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The Optionee acknowledges receipt of copies of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms and provisions of the Plan and this Option grant. The Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee upon any questions arising under the Plan.
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Optionee |
Date: , 20
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, , spouse/domestic partner of the Optionee who executed the foregoing Agreement, hereby agree that my spouse’s/domestic partner’s interest in the shares of Common Stock subject to said Agreement shall be irrevocably bound by the Agreement’s terms. I further agree that my community property interest in such shares, 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 |
Date: , 20
APPENDIX I
MOSYS, INC.
NOTICE OF EXERCISE OF STOCK OPTION
I, (print legibly), hereby elect to exercise the following stock options(s) granted to me by MOSYS, INC. (the “Company”) under its 2010 Equity Incentive Plan (the “Plan”) and the listed Stock Option Agreement entered into between the Company and me (the “Agreement”). All shares being purchased are fully vested and exercisable pursuant to Section 3 of the Agreement.
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Shares at $ |
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per share (Grant date): |
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Shares at $ |
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per share (Grant date): |
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3. |
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Shares at $ |
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per share (Grant date): |
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4. |
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Shares at $ |
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per share (Grant date): |
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Method of Exercise
o Cash exercise in the aggregate amount of $ [ ].
o Authorized cashless exercise program under Section 5(c) of the Agreement.
o Surrender of shares of Common Stock pursuant to Section 5(d) of the Agreement.
Shares purchased under the Plan should be issued to me as follows:
Name:
If you choose to include your spouse, you must designate below how you wish your shares to be registered by checking the appropriate box. If we receive no designation, the shares will be designated as Joint Tenants.
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o Joint Tenants |
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o Community Property |
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o Tenants in Common |
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o Tenancy by Entirety |
Verification by Stock Administration
Certificate to be delivered to (complete item 1 or 2 below)
1. Employee:
Home Address:
2. ( Insert Name of Second Broker )
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Acct #: |
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Contact Name & Number: |
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Signature: |
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Date: |
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Social Security No.: |
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[ For Company Use Only ]
As of the date set forth above, the above named person has the vested right to exercise the number of shares set forth above.
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Amount due Company: $ |
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MoSys, Inc. Stock Administration |
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755 N. Mathilda Avenue |
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Sunnyvale, California 94085 |
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(408) 731-1800 |
Exhibit 5.1
[BINGHAM MCCUTCHEN LLP LETTERHEAD]
July 28, 2010
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 July 28, 2010 (the “Registration Statement”).
The Registration Statement covers the registration of a total of 6,000,000 shares of common stock, par value $0.01 per share, of the Company (the “Shares”), of which 4,000,000 shares are issuable by the Company upon exercise of options and pursuant to other awards to be granted under the MoSys, Inc. 2010 Equity Incentive Plan and 2,000,000 shares are issuable by the Company under the MoSys, Inc. 2010 Employee Stock Purchase Plan. The 2010 Equity Incentive Plan and 2010 Employee Stock Purchase Plan are referred to collectively in this opinion as the “Plans.”
We have reviewed the corporate proceedings of the Company with respect to the authorization of the Plans. We have reviewed copies of each of the Plans 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 Plans will be issued in accordance with the terms of the Plans 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 pursuant to other awards granted under and in accordance with the Plans and against the payment of any purchase price therefore, as specified in such Plans 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 hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 26, 2010 relating to the consolidated financial statements and financial statement schedule of MoSys, Inc., which appears in the Annual Report on Form 10-K of MoSys, Inc. for the year ended December 31, 2009.
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/s/ Burr Pilger Mayer, Inc. |
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San Jose, California |
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July 28, 2010 |
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