UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MIPS Technologies, Inc.
(Exact name of registrant as specified in its charter)
| DELAWARE | 77-0322161 | |
|---|---|---|
| (State or other jurisdiction of Incorporation or organization) |
(I.R.S. Employer Identification Number) |
1225 CHARLESTON ROAD
MOUNTAIN VIEW, CA 94043-1353
(Address
of principal executive offices)
MIPS Technologies, Inc. 1998 Long-Term Incentive Plan, as amended
MIPS Technologies, Inc. Employee Stock Purchase Plan, as amended
MIPS Technologies, Inc. Directors' Stock Purchase Plan, as amended
(Full titles of the plans)
John E. Bourgoin
Chief Executive Officer and President
MIPS TECHNOLOGIES, INC.
1225 Charleston Road
Mountain View, CA 94043-1353
(Name and address of agent for services)
(650) 567-5000
(Telephone number, including area code, of agent for services)
CALCULATION OF REGISTRATION FEE
| Common Stock, $0.001 par value (4) |
Common Stock, $0.001 par value(4) |
Total | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|
| Amount to be Registered | 1,789,817(1) | 224,379(2) | 2,014,196 | ||||||||
| Proposed Maximum Offering Price Per Share(3) | $7.18 | $6.10 | |||||||||
| Proposed Maximum Aggregate Offering Price | $12,850,886 | $1,369,385 | $14,220,271 | ||||||||
| Amount of Registration Fee | $1,596 | $170 | $1,766 | ||||||||
| (1) | Represents 1,699,817 shares of Common Stock automatically reserved on July 1, 2005 for issuance upon the exercise of stock options that may be granted under the 1998 Long-Term Incentive Plan, as amended and represents 90,000 shares of Common Stock automatically reserved on July 1, 2005 for issuance upon the exercise of stock options that may be granted under the Directors’ Stock Option Plan, as amended. |
| (2) | Represents 224,379 shares of Common Stock automatically reserved on July 1, 2005 for issuance upon the distribution of stock that may be purchased under the Employee Stock Purchase Plan, as amended. |
| (3) | The price shown is the average of the high and low price of the Common Stock reported on the Nasdaq National Market on August 5, 2005, in accordance with Rule 457(c) of the Securities Act of 1933, as amended (the “Securities Act”), and is being used solely for the purpose of calculating the registration fee. In the case of the Employee Stock Purchase Plan, this amount is multiplied by 85%, which amount is the percentage of the price per share applicable to purchases under the Employee Stock Purchase Plan. |
| (4) | This Registration Statement also covers rights to purchase shares of the Registrant’s Series A Participating Preferred Stock (the "Rights") that are attached to all shares of the Registrant’s common stock. Until the occurrence of certain prescribed events, the Rights are not exercisable, are evidenced by the certificates for common stock and will be transferable along with and only with the common stock. The value attributable to the Rights, if any, is reflected in the value of the common stock. |
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STATEMENT PURSUANT TO GENERAL
INSTRUCTION E TO FORM S-8
The contents of the Registrant’s Registration Statements on Form S-8 (Reg. Numbers 333-65693, 333-95339, 333-44526, 333-66028, 333-87172, 333-100092, 333-107849 and 333-118129), as filed with the Securities and Exchange Commission (the “Commission”) on October 15, 1998, January 25, 2000, August 25, 2000, July 27, 2001, April 29, 2002, September 25, 2002, August 11, 2003 and August 11, 2004 respectively, are incorporated by reference herein.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
See Exhibit Index.
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Pursuant to the requirements of the Securities Exchange Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of hte 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 Mountain View, California, on August 11, 2005.
| MIPS Technologies, Inc. | |
| a Delaware corporation | |
| By: /s/ JOHN E. BOURGOIN | |
| John E. Bourgoin | |
| President, Chief Executive Officer and Director |
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SIGNATURES and POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. In addition, each person whose signature appears below constitutes and appoints John E. Bourgoin and Kevin C. Eichler, each alone to act as his true and lawful attorney-in-fact and agent, each with the full power of substitution, for him and in his name in any and all capacities, to sign any or all amendments, including pre-effective and post-effective amendments, and supplements to this Registration Statement on Form S-8 relating to the Registrant’s 1998 Long-Term Incentive Plan, Employee Stock Purchase Plan and Directors’ Stock Option Plan, and to file the same, with exhibits thereto and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do 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 each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.
| Signature |
Title |
Date | |
|---|---|---|---|
| /s/ John F. Bourgoin |
|||
| John E. Bourgoin | President, Chief Executive Officer, and Director (Principal Executive Officer) |
August 11, 2005 | |
| /s/ Kevin C. Eichler |
|||
| Kevin C. Eichler | Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) |
August 11, 2005 | |
| /s/ Kenneth L. Coleman |
|||
| Kenneth L. Coleman | Director | August 11, 2005 | |
| /s/ Fred M. Gibbons |
|||
| Fred M. Gibbons | Director | August 11, 2005 | |
| /s/ Robert R. Herb |
|||
| Robert R. Herb | Director | August 11, 2005 | |
| /s/ Anthony B. Holbrook |
|||
| Anthony B. Holbrook | Director and Chairman of the Board | August 11, 2005 | |
| /s/ Benjamin A Horowitz |
|||
| Benjamin A. Horowitz | Director | August 11, 2005 | |
| /s/ William M. Kelly |
|||
| William M. Kelly | Director | August 11, 2005 |
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EXHIBIT INDEX
Item 8. Exhibits
| Exhibit No |
Exhibit |
Form |
File No. |
Filing Date |
Exhibit No. |
Filed Herewith | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 3.01 | Certificate of Incorporation | 8-K | 000-24487 | 11-14-03 | 3.1 | |||||||||||||||
| 3.02 | Bylaws | 8-K | 000-24487 | 11-14-03 | 3.2 | |||||||||||||||
| 3.03 | Preferred Stock Rights Agreement | 8-A 12G/A | 000-24487 | 11-18-03 | 10.11.3 | |||||||||||||||
| 4.01 | MIPS Technologies, Inc. 1998 Long-Term Incentive Plan, as amended | 10K | 000-24487 | 9-8-04 | 10.8 | |||||||||||||||
| 4.02 | MIPS Technologies, Inc. Employee Stock Purchase Plan, as amended | 10-Q | 000-24487 | 2-14-01 | 10.9 | |||||||||||||||
| 4.03 | MIPS Technologies, Inc. Directors' Stock Option Plan, as amended | 10-Q | 000-24487 | 5-10-02 | 10.10 | |||||||||||||||
| 5.01 | Opinion of Fenwick & West LLP | X | ||||||||||||||||||
| 23.01 | Consent of Fenwick & West LLP (included in Exhibit 5.01) | X | ||||||||||||||||||
| 23.02 | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | X | ||||||||||||||||||
| 24.01 | Power of Attorney (included on signature page) | X | ||||||||||||||||||
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EXHIBIT 5.01
August 11, 2005
MIPS Technologies, Inc.
1225
Charleston Road
Mountain View, CA 94043-1353
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by MIPS Technologies, Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) on or about August 11, 2005 in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 2,014,196 shares of the Company’s Common Stock (the “Stock”), (a) 1,699,817 shares of which are subject to issuance by the Company upon the exercise of stock options granted or to be granted under the Company’s 1998 Long-Term Incentive Plan, as amended (the “1998 Plan”), (b) 224,379 shares of which are subject to issuance upon the exercise of stock options granted or to be granted under the Company’s Employee Stock Purchase Plan, as amended (the “Purchase Plan”), and (c) 90,000 shares which are subject to issuance upon the exercise of stock options granted or to be granted under the Company’s Directors’ Stock Option Plan, as amended (the “Directors’ Plan”). The plans referred to in clauses (a) through (c) above are collectively referred to in this letter as the “Plans”. In rendering this opinion, we have examined such matters of fact as we have deemed necessary in order to render the opinion set forth herein, which included examination of the following.
| (1) | the Company’s Amended and Restated Certificate of Incorporation, certified by the Delaware Secretary of State on November 13, 2003. |
| (2) | the Company’s Bylaws, certified by the Company’s Secretary on August 11, 2005. |
| (3) | the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference. |
| (4) | the Prospectus prepared in connection with the Registration Statement. |
| (5) | the minutes of meetings and actions by written consent of the stockholders and Board of Directors that are contained in the Company's minute books as they relate to the S-8. |
| (6) | a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual representations (the “Management Certificate”). |
In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same, the lack of any undisclosed termination, modification, waiver or amendment to any document reviewed by us and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof. We have also assumed that the certificates representing the Stock have been, or will be when issued, properly signed by authorized officers of the Company or their agents.
August 11, 2005
Page 2
As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.
We are admitted to practice law in the State of California, and we render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing laws of the United States of America and, of the State of California, and of the Delaware General Corporation Law, the Delaware Constitution and reported judicial decisions relating thereto.
Based upon the foregoing, it is our opinion that the 2,014,196 shares of Stock that may be issued and sold by the Company upon the exercise of (a) stock options granted or to be granted under the 1998 plan or Directors Plan or (b) purchase rights granted or to be granted under the Purchase Plan, when issued, sold and delivered in accordance with the applicable plan and purchase agreements to be entered into thereunder and in the manner and for the consideration stated in the Registration Statement and Prospectus will be 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, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. This opinion is intended solely for use in connection with issuance and sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.
| Very truly yours, | |
| FENWICK & WEST LLP | |
| By: /s/ DANIEL J. WINNIKE | |
| Daniel J. Winnike, a Partner |
EXHIBIT 23.02
Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8), pertaining to the 1998 Long-Term Incentive Plan, as amended, the Employee Stock Purchase Plan, as amended, and the Directors’ Stock Option Plan, as amended, of MIPS Technologies, Inc. of our report dated July 19, 2004, with respect to the consolidated financial statements of MIPS Technologies, Inc. included in its Annual Report (Form 10-K) for the year ended June 30, 2004 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
August 10, 2005
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