IOMEGA
CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
|
Delaware (State or Other Jurisdiction of Incorporation or Organization) |
86-0385884 (IRS employer Identification Number) |
|
10955 Vista Sorrento Parkway San Diego, California 92130 (Address of Principal Executive Offices) |
92130 (Zip Code) |
2005 Director Stock Option Plan
(Full Title of the Plan)
Thomas D. Kampfer
Executive Vice President, General Counsel and Secretary
Iomega Corporation
10955 Vista Sorrento Parkway
San Diego, California 92130
(Name and Address of Agent For Service)
(858) 314-7000
(Telephone Number, Including Area Code, of Agent For Service)
Proposed Maximum
Title of Securities to be Amount to be Offering Price Proposed Maximum Amount of
Registered Registered(1) Per Share Aggregate Offering Price Registration Fee
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Common Stock, $.03-1/3 par
value per share (including 500,000 shares $2.75 (2) $1,370,000.00 (2) $161.84
the associated Preferred
Stock Purchase Rights)
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this Registration Statement
shall be deemed to cover any additional securities that may from time to time be offered or issued to
prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h)
of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the New York Stock Exchange on June 20, 2005.
The information required by Item 1 is included in documents sent or given to participants in the plans covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
The written statement required by Item 2 is included in documents sent or given to participants in the plans covered by this Registration Statement pursuant to Rule 428(b)(1) of the Securities Act.
The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed.
(b) 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 the document referred to in (a) above.
(c) The description of the securities contained in the Registrant's Registration Statement on Form 8-A filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the 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 the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Not applicable.
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Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this Registration Statement. Attorneys at Wilmer Cutler Pickering Hale and Dorr LLP own, in the aggregate, 67,070 shares of the Registrant’s common stock.
Under Article Sixth of the Registrant’s Restated Certificate of Incorporation, as amended, and Article 5 of the Registrant’s By-Laws, each person who is a director or officer of the Registrant shall be indemnified by the Registrant to the full extent permitted by Section 145 of the General Corporation Law of Delaware (“Section 145”).
Section 145 provides a detailed statutory framework covering indemnification of directors and officers of liabilities and expenses arising out of legal proceedings brought against them by reason of their status or service as directors or officers. This section provides that a director or officer of a corporation (i) shall be indemnified by the corporation for all expenses of such legal proceedings when he is successful on the merits, (ii) may be indemnified by the corporation for the expenses, judgments, fines and amounts paid in settlement of such proceedings (other than a derivative suit), even if he is not successful on the merits, if he acted in good faith and in manner he reasonably believed to be in or not opposed to the best interests of the corporation (and, in the case of a criminal proceeding, had no reasonable cause to believe his conduct was unlawful), and (iii) may be indemnified by the corporation for expenses of a derivative suit (a suit by a shareholder alleging a breach by a director or officer of a duty owed to the corporation), even if he is not successful on the merits, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. No indemnification may be made under clause (iii) above, however, if the director or officer is adjudged liable for negligence or misconduct in the performance of his duties to the corporation, unless a court determines that, despite such adjudication and in view of all of the circumstances, he is entitled to indemnification. The indemnification described in clauses (ii) and (iii) above may be made only upon a determination that indemnification is proper because the applicable standard of conduct has been met. Such a determination may be made by a majority of a quorum of disinterested directors, independent legal counsel or the stockholders. The board of directors may authorize advancing litigation expenses to a director or officer upon receipt of an undertaking by such director or officer to repay such expenses if it is ultimately determined that he is not entitled to be indemnified for them.
The Registrant has entered into indemnification agreements with each of its directors and executive officers which supplement or clarify the statutory indemnity provisions of Section 145 in the following respects: (i) the presumption that the director or officer met the applicable standard of conduct is established, (ii) the advancement of litigation expenses is provided upon request if the director or officer agrees to repay them if it is ultimately determined that he is not entitled to indemnification for them, (iii) indemnity is explicitly provided for settlements of derivative actions, (iv) the director or officer is permitted to petition a court to determine whether his actions met the standard required, and (v) partial indemnification is permitted in the event that the director or officer is not entitled to full indemnification.
As permitted by Section 145, the Registrant has purchased a general liability insurance policy which covers certain liabilities of directors and officers of the Registrant arising out of claims based on acts or omissions in their capacity as directors or officers and for which they are not indemnified by the Registrant.
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Not applicable.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 512(a) of Regulation S-K. The undersigned Registrant hereby undertakes:
(a) 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; and
(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) 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 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.
(b) 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.
(c) 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.
Item 512(b) of Regulation S-K. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s 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.
Item 512(h) of Regulation S-K. Insofar as 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 Securities and Exchange 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 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 Securities Act and will be governed by the final adjudication of such issue.
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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 San Diego, California on this 22 day of June, 2005.
IOMEGA CORPORATION
By: /s/ Werner T. Heid
Werner T. Heid
President and Chief Executive Officer
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We, the undersigned officers and directors of Iomega Corporation, hereby severally constitute and appoint Thomas D. Kampfer and Jonathan Wolfman, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Iomega Corporation to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.
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 dates indicated.
Signature Title Date
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/s/ Werner T. Heid President and Chief Executive Officer June 22, 2005
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Werner T. Heid (Principal Executive Officer); Director
/s/ Thomas Liguori Vice President, Finance and Chief Financial June 22, 2005
---------------------------------
Thomas Liguori Officer (Principal Financial and Accounting
Officer)
/s/ Stephen N. David Chairman of the Board June 22, 2005
---------------------------------
Stephen N. David
/s/ R. P. Berkowitz Director June 22, 2005
---------------------------------
Robert P. Berkowitz
/s/Bruce B. Darling Director June 22, 2005
---------------------------------
Bruce B. Darling
/s/ Margaret L. Hardin Director June 22, 2005
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Margaret L. Hardin
/s/ Jonathan S. Huberman Director June 22, 2005
---------------------------------
Jonathan S. Huberman
/s/ John E. Nolan Director June 22, 2005
---------------------------------
John E. Nolan
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Number Description
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4.1 (1) Restated Certificate of Incorporation of the Registrant, as amended
4.2 (1) By-Laws of the Registrant, as amended
4.3 (2) Rights Agreement dated July 29, 1999 between the Registrant and American Stock
Transfer and Trust Company, as rights agent
5 Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the
Registrant
23.1 Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of BDO Seidman, LLP, Independent Registered Public Accounting Firm
23.3 Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm
24 Power of Attorney (included on the signature pages of this Registration
Statement)
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(1) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's
Registration Statement on Form S-8 filed on June 26, 2003 (File No. 333-106525)
(2) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's
Registration Statement on Form 8-A filed on August 5, 1999 (File No. 1-12333).
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