- Securities Registration: Employee Benefit Plan (S-8)

As filed with the Securities and Exchange Commission on December 8, 2009

Registration No. 333-______

 

 

 

---

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 No.)

955 East Arques Avenue

Sunnyvale, CA 94085

(Address of principal executive offices)

MIPS Technologies, Inc. Amended and Restated Employee Stock Purchase Plan

(Full title of the plan)

John E. Bourgoin

Chief Executive Officer and President

MIPS TECHNOLOGIES, INC.

955 East Arques Avenue

Sunnyvale, CA 94085

(Name and address of agent for service)

 

 

[phone]

(Telephone number, including area code, 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.

 

Large accelerated filer  ¨

Accelerated filer   ¨

Non-accelerated filer   ¨ (Do not check if a smaller reporting company)

Smaller reporting company   x

 

 

 

 

---

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered	Amount to be Registered (1)(2)	Proposed Maximum Offering Price per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, par value $0.001 per share, issuable pursuant to the Amended and Restated Employee Stock Purchase Plan	1,000,000(3)	$3.83(4)	$3,830,000.00(4)	$213.71

 

---

 

(1)	Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.

 

(2)

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.

 

(3)	Represents 1,000,000 additional shares of Common Stock reserved for future grant under the Registrant’s Amended and Restated Employee Stock Purchase Plan (the “ESPP”), which increase was approved at the Registrant’s Annual Meeting of Stockholders held on November 12, 2009.

 

(4)

Estimated solely for the purpose of computing the amount of registration fee in accordance with Rules 457(c) and (h) promulgated under the Securities Act based on the average of the high and low prices of our Common Stock as reported on The NASDAQ Global Select Market on December 4, 2009.  Under the ESPP, the purchase price of a share of Common Stock is equal to lower of 85% of the fair market value of our Common Stock (a) on the first day of the offering or (b) on the last day of the offering.

 

 

 

 

---

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

     ITEM 3.  INCORPORATION OF DOCUMENTS BY REFERENCE.

 

     The following documents, all of which the Registrant has previously filed with the Commission pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”) are incorporated herein by this reference:

 

     (1) Registrant’s Annual Report on Form 10-K for the year ended June 30, 2009, filed with the Commission on September 15, 2009.

 

     (2) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by Registrant’s latest Annual Report referred to in (1) above.

 

     (3) The description of Registrant’s common stock as set forth in the Registration Statement on Form 8-A filed with the Commission on April 5, 1999, File No. 000-24487, including any amendments or reports filed with the Commission for the purpose of updating such description.

 

     (4) The description of Registrant’s Preferred Stock Rights contained in the Registration Statement on Form 8-A filed with the Commission on November 18, 2003, File No. 000-24487, including any other amendments or reports filed for the purpose of updating such description.

 

     All reports and other documents filed by the Registrant pursuant to sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part hereof from the date of filing such documents, except as to specific sections of such reports or other documents as set forth therein.  Unless expressly incorporated into this Registration Statement, a report furnished on Form 8-K prior or subsequent to the date hereof shall not be incorporated by reference into this Registration Statement.  Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein) modifies or supersedes such statement.  Any such 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”) empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer or director of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such officer or director acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, and, in the case of criminal proceedings, had no reasonable cause to believe his or her conduct was illegal. A Delaware corporation may indemnify officers and directors against expenses (including attorneys' fees) in connection with the defense or settlement of an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation.  Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against expenses which such officer or director actually and reasonably incurred. The Restated Certificate of Incorporation of the Registrant provides for indemnification of the officers and directors of the Registrant to the full extent permitted by applicable law.

     In accordance with Delaware law, the Restated Certificate of Incorporation of the Registrant contains a provision to limit the personal liability of directors of the Registrant for violations of their fiduciary duty.  This provision eliminates each director's liability to the Registrant or its stockholders for monetary damages except (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions, or (iv) for any transaction from which a director derived an improper personal benefit. The effect of this provision is to eliminate the personal liability of directors for monetary damages for actions involving a breach of their fiduciary duty of care, including any such actions involving gross negligence.

     The indemnification provisions in the Bylaws may be sufficiently broad to permit indemnification of the Registrant's directors and officers for liabilities arising within the meaning of the Securities Act.

 

     The Registrant has entered into indemnification agreements with its directors and officers, indemnifying them against certain potential liabilities that may arise as a result of their service to the Registrant, and providing for certain other protections. The Registrant also maintains an insurance policy insuring its directors and officers against liability for certain acts and omissions while acting in their official capacities.

   

     ITEM 7.  EXEMPTION FROM REGISTRATION CLAIMED.

 

     Not applicable.

 

     ITEM 8.  EXHIBITS.

 

     See Exhibit Index.

 

 

 

 

---

 

 

     ITEM 9.  UNDERTAKINGS.

     (a) The undersigned Registrant hereby undertakes:

 

 

         (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

             (i) to include any prospectus required by Section 10(a)(3) or the Securities Act of 1933;

 

            (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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective 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 (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.

 

 

         (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

         (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

     (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 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.

 

     (c) 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, California, on December 8, 2009.

 

	MIPS TECHNOLOGIES, INC.
	By:	/s/ JOHN BOURGOIN
		John Bourgoin
		President, Chief Executive Officer and Director

 

 

 

 

---

 

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 Maury Austin, each alone to act as his or her true and lawful attorney-in-fact and agent, each with the full power of substitution, for him or her and in his or her 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 Amended and Restated Employee Stock Purchase 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 or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her substitute or substitutes, may do or cause to be done by virtue hereof.

Signature	Title	Date
/s/  John F. Bourgoin	President, Chief Executive Officer, and Director	December 8, 2009
John E. Bourgoin	(Principal Executive Officer)
/s/  Maury Austin	Vice President and Chief Financial Officer	December 8, 2009
Maury Austin	(Principal Financial and Accounting Officer)
/s/  Kenneth L. Coleman	Director	December 8, 2009
Kenneth L. Coleman
/s/  Fred M. Gibbons	Director	December 8, 2009
Fred M. Gibbons
/s/  Robert R. Herb	Director	December 8, 2009
Robert R. Herb
/s/  Anthony B. Holbrook	Director	December 8, 2009
Anthony B. Holbrook
/s/  William M. Kelly	Director	December 8, 2009
William M. Kelly
/s/  Robin L. Washington	Director	December 8, 2009
Robin L. Washington

 

 

---

 

EXHIBIT INDEX

 

Item 8.  Exhibits

 

Exhibit No.

Exhibit

Form

File No.

Filing Date

Exhibit No.

Filed Herewith

4.01

Preferred Stock Rights Agreement

8-A

000-24487

11-18-03

10.11.3

4.02

MIPS Technologies, Inc. Amended and Restated Employee Stock Purchase Plan

S-8

333-148606

01-11-08

4.03

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 Independent Registered Public Accounting Firm

X

24.01

Power of Attorney (included on signature page)

X

 

 

---