As filed with the Securities and Exchange Commission on June 30, 2008
Registration No. 333-64667
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
Form S-8
REGISTRATION STATEMENT
And
POST-EFFECTIVE AMENDMENT
UNDER
THE SECURITIES ACT OF 1933
ESS TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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94-2928582
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(State or Other
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(IRS Employer
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Jurisdiction of Incorporation)
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Identification No.)
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48401 FREMONT BOULEVARD
FREMONT, CA
(510) 492-1088
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
1995 EMPLOYEE STOCK PURCHASE PLAN
1997 EQUITY INCENTIVE PLAN
(Full title of the Plan)
Robert Blair
48401 FREMONT BOULEVARD
FREMONT, CA 94538
(510) 492-1088
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Peter Cohn, Esq.
Lowell Ness, Esq.
Orrick, Herrington & Sutcliffe LLP
1000 Marsh Road
Menlo Park, CA 94025
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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EXPLANATORY STATEMENT
Reincorporation; Assumption of Registration Statement
On June 30, 2008, ESS Technology, Inc., a California corporation (the Predecessor
Registrant), completed a reincorporation to the State of
Delaware pursuant to the agreement and
plan of merger dated February 21, 2008 among Predecessor Registrant,
Registrant, Semiconductor Holding Corporation, a wholly owned
subsidiary of Imperium Master Fund, Ltd. (Imperium), and
Echo Mergerco, Inc., a wholly owned subsidiary of Imperium, as approved by the shareholders at the 2008 annual meeting of shareholders held on
June 27, 2008.
This Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (File No.
333-64667), filed with the Securities and Exchange Commission (the Commission) on September 29,
1998 by the Predecessor Registrant (the Registration Statement), relating to the 1995 Employee
Stock Purchase Plan, and 1997 Equity Incentive Plan, is being filed
by ESS Technology,
Inc., a Delaware corporation (the Registrant or the Company ) pursuant to Rule 414 under the
Securities Act of 1933, as amended (the Securities Act), as the successor issuer to the
Predecessor Registrant following the reincorporation.
In accordance with Rule 414(d) under the Securities Act, the Registrant, as successor to the
Predecessor Registrant, hereby expressly adopts the Registration Statement as its own for all
purposes of the Securities Act and the Securities Exchange Act of 1934, as amended (the Exchange
Act).
TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission (the Commission)
are hereby incorporated by reference:
(a) The Predecessor Registrants Annual Report on Form 10-K for the fiscal year ended
December 31, 2007, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as
amended;
(b) All other reports filed by the Predecessor Registrant and Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Companys
document referred to in (a) above; and
(c) The description of the
Predecessor Registrants Common Stock contained in the Predecessor
Registrants Registration Statement on Form 8-A filed with the Commission under Section 12 of the
Exchange Act on October 5, 1995, including any amendment or report filed for the purpose of
updating such description.
All
documents subsequently filed by the Predecessor Registrant and Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that
all securities offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify
directors and officers, as well as other employees and individuals, against expenses (including
attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred
by any such person in connection with any threatened, pending or completed actions, suits or
proceedings in which such person is made a party by reason of such person being or having been a
director, officer, employee or agent of the Registrant. The Delaware General Corporation Law
provides that Section 145 is not exclusive of other rights to which those seeking indemnification
may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the directors duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or
unlawful stock repurchases, redemptions or other distributions, or (iv) for any transaction from
which the director derived an improper personal benefit.
The Bylaws requires the Registrant to indemnify its directors and officers to the maximum
extent permitted by law and the Registrant has entered into indemnification agreements with each
director and officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
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Exhibit
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Number
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Document
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5.1
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Opinion of Orrick, Herrington & Sutcliffe LLP,
previously filed as an Exhibit to the Registration
Statement on Form S-8, dated September 29, 1998
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23.1
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Consent of PricewaterhouseCoopers LLP, An Independent
Registered Public Accounting Firm.
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23.2
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Consent of Orrick, Herrington & Sutcliffe LLP
(included in its opinion filed as Exhibit 5.1 to this
Registration Statement).
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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 to include any material information with respect to the
plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement.
(2) that, for purposes 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.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act 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 the indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in a successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel the matter has
already been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Post-Effective Amendment no. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunder duly authorized, in the City of Fremont, State of
California, on this 30th day of June, 2008.
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By: / s / Robert L. Blair
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Robert L. Blair
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President and Chief Executive Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment no. 1 to
the Registration Statement has been signed by the following persons in the capacities indicated
below on the 30th day of June, 2008.
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Signature
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Title
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By:
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/ s / Robert L. Blair
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President, Chief Executive Officer and Director (Principal Executive Officer)
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Robert L. Blair
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