SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Digital Power Corporation
(Exact name of registrant as specified in its charter)
California 94-1721931
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
41920 Christy Street, Fremont, California 94538-3158
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(Address of Principal Executive Offices) (Zip Code)
2002 Stock Option Plan
1998 Stock Option Plan
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(Full title of the plans)
David Amitai
Chief Executive Officer
Digital Power Corporation
41920 Christy Street
Fremont, California 94538-3158
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(Name and address of agent for service)
(510) 657-2635
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered share price registration fee
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Common Stock 1,219,000 $0.66(1) $804,540 $65.09
underlying 2002 Stock
Option Plan reserved
for future issuance
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Common Stock 240,000 $0.66(1) $158,400 $12.82
underlying 1998 Stock
Option Plan reserved
for future issuance
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Total $77.91
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(1) Calculated in accordance with Rule 457(c) of the Securities Act of 1933, as
amended ("Securities Act"). Estimated for the sole purpose of calculating
the registration fee and based upon the average of the high and low price
per share of the common stock of the Registrant on April 29, 2003, as
reported on AMEX.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Securities and Exchange Commission rules and regulations allow us to
"incorporate by reference" the information that we file with the Securities and
Exchange Commission. This means that we can disclose additional important
information to you by referring to those documents. The information incorporated
by reference is an important part of this Prospectus, and information that we
file in the future with the Securities and Exchange Commission will
automatically update and supersede this information. We have filed the following
documents with the Securities and Exchange Commission and the information
contained in those documents is incorporated by reference into this registration
statement:
(1) Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 2002;
(2) Registrant's Proxy Statement for the Annual Meeting held on September 23,
2002 and adjourned to October 17, 2002;
(3) Registrant's current report on Form 8-K filed on April 4, 2003; and
(4) The Description of Securities in Item 1 of the Registration Statement on
Form 8A for registration of the Registrant's common stock pursuant to
Section 12(g) of the Exchange Act.
Please note that all other documents and reports filed under Sections
13(a), 13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as
amended, following the date of this Prospectus and prior to the termination of
this offering will be deemed to be incorporated by reference into this
Prospectus and will be made a part of it from the date of filing with the
Securities and Exchange Commission.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the registration
statement to the extent that a statement contained herein modifies or replaces
such statement. Any such statement shall not be deemed to constitute a part of
this registration statement except as so modified or replaced.
Item 4. Description of Securities.
The Registrant's common stock to be offered under this registration
statement is registered under Section 12 of the Exchange Act.
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Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Sections 204 and 317 of the California Corporations Code (the "Corporations
Code") permit indemnification of directors, officers, and employees of
corporations under certain conditions subject to certain limitations. Article V
of the Registrant's Amended and Restated Articles of Incorporation (the
"Articles") provides that the liability of the directors for monetary damages
shall be eliminated to the fullest extent permissible under California Law.
Article V of the Registrant's Articles states that the Registrant may provide
indemnification of its agents, including its officers and directors, for breach
of duty to the Registrant in excess of the indemnification otherwise permitted
by Section 317 of the Corporations Code, subject to the limits set forth in
Section 204 of the Corporations Code. Article VI of the Bylaws provides that the
Registrant shall, to the maximum extent and in the manner permitted in the
Corporations Code, indemnify each of its agents, including its officers and
directors, against expenses, judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding arising by
reason of the fact any such person is or was an agent of the Registrant.
Pursuant to Section 317 of the Corporations Code, the Registrant is
empowered to indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the right of the
Registrant to procure a judgment in its favor) by reason of the fact that such
person is or was an officer, director, employee, or other agent of the
Registrant or its subsidiaries, against expenses, judgments, fines, settlements,
and other amounts actually and reasonably incurred in connection with such
proceeding, if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Registrant and, in the
case of a criminal proceeding, has no reasonable cause to believe the conduct of
such person was unlawful. In addition, the Registrant may indemnify, subject to
certain exceptions, any person who was or is a party or is threatened to be made
a party to any threatened, pending, or completed action by or in the right of
the Registrant to procure a judgment in its favor by reason of the fact that
such person is or was an officer, director, employee, or other agent of the
Registrant or its subsidiaries, against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of such
action if such person acted in good faith and in a manner such person believed
to be in the best interest of the Registrant and its shareholders. The
Registrant may advance expenses incurred in defending any proceeding prior to
final disposition upon receipt of an undertaking by the agent to repay that
amount if it shall be determined that the agent is not entitled to
indemnification as authorized by Section 317. In addition, the Registrant is
permitted to indemnify its agents in excess of Section 317.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description of Exhibit
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5.1 Opinion of Bartel Eng & Schroder dated April 30, 2003.
10.1 2002 Stock Option Plan (1)
10.2 1998 Stock Option Plan (2)
23.1 Consent of Bartel Eng & Schroder (contained in Exhibit 5.1)
23.2 Consent of Kost Forer & Gabbay, a Member of Ernst & Young
Global, Independent Auditors
23.3 Consent of Hein + Associates LLP, Independent Auditors
(1) Incorporated by reference from the Registrant's Proxy Statement for the
meeting held on September 23, 2002 and adjourned to October 17, 2002 (File
No. 001-12711).
(2) Incorporated by reference from the Registrant's Annual Report on Form
10-KSB for the year ended December 31, 1998 (File No. 001-12711).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes to:
(1) File, during any period in which the Registrant offers or sells
securities, a post-effective amendment to this registration statement
to:
* * * *
(iii)Include any additional or changed material information on the
plan of distribution.
(2) For determining any liability under the Securities Act, treat each
such post-effective amendment as a new registration statement of
securities offered, and the offering of such securities at that time
to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end of the offering.
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* * * *
(e) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "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 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 for the payment of expenses 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 the Registrant's
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 Securities 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 Fremont, State of California.
DIGITAL POWER CORPORATION,
a California corporation
Dated: 5/2/2003 By: /s/David Amitai
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David Amitai,
Chief Executive Officer and President
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Dated: 5/2/2003 By: /s/David Amitai
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David Amitai,
Chief Executive Officer and President
(Principal Executive Officer)
Dated: 5/2/2003 By: /s/Benzi Diamant
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Benzi Diamant,
Chairman
Dated: 5/1/2003 By: /s/Mark Thum
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Mark Thum,
Director
Dated: 5/1/2003 By: /s/Josef Berger
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Josef Berger,
Director
Dated: ______________ By: _________________________________
Yeheskel Manea,
Director
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Dated: 5/2/2003 By: /s/Youval Menipaz
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Youval Menipaz,
Director
Dated: 5/2/2003 By: /s/Haim Yatim
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Haim Yatim,
Chief Financial Officer
(Principal Accounting and Financial
Officer)
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