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As filed with the Securities and Exchange Commission on April 20, 1999
Registration No. 333-_____________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INSIGNIA SOLUTIONS PLC
(Exact Name of Registrant as Specified in Its Charter)
ENGLAND AND WALES NOT APPLICABLE
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
41300 CHRISTY STREET
FREMONT, CA 94538
(Address of Principal Executive Offices)
1995 INCENTIVE STOCK OPTION PLAN FOR U.S. EMPLOYEES
U.K. EMPLOYEE SHARE OPTION SCHEME 1996
1995 EMPLOYEE SHARE PURCHASE PLAN
(Full Title of the Plans)
RICHARD M. NOLING
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INSIGNIA SOLUTIONS PLC
41300 CHRISTY STREET
FREMONT, CA 94538
(510) 360-3700
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Katherine Tallman Schuda, Esq.
Fenwick & West
Two Palo Alto Square
Palo Alto, California 94306
(650) 494-0600
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED(1) REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Ordinary Shares (L0.20 par value)
represented by American Depositary Shares 800,000 $ 7.90625(2) $ 6,325,000 $ 1,758.35
------- --------- ---------- ---------
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(1) A separate registration statement on Form F-6 (File No. 33-98228) has been
declared effective with respect to the American Depositary Shares
represented by American Depositary Receipts issuable on a one-for-one basis
with the Ordinary Shares registered hereby upon deposit of such Ordinary
Shares.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(c) under the Securities Act of 1933
and based upon the average of the high and low prices reported on the
Nasdaq National Market on April 19, 1999.
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INSIGNIA SOLUTIONS PLC
REGISTRATION STATEMENT ON FORM S-8
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 incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998 filed pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which Annual Report contains audited financial statements for the
year ended December 31, 1998; and
(b) The description of the Registrant's Ordinary Shares contained in
the Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of 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 AND LIMITATION OF LIABILITY.
The Registrant's Articles of Association contain a provision to the
effect that, so far as permitted by the statutory provisions of English law,
the directors and secretary shall be indemnified by the Registrant against
liabilities incurred by them in relation to the affairs of the Registrant.
However, the Companies Act 1985 renders any such indemnity ineffective to the
extent it applies to neglect or breach of duty in relation to the Registrant,
except to the extent that it covers costs incurred by the director or
secretary in respect of court proceedings in which judgment is given in his
favor.
The Registrant's policy is to enter into indemnity agreements with
each of its directors and executive officers. In addition, Insignia
Solutions, Inc. enters into indemnity agreements with each of the
Registrant's directors and executive officers. The indemnity agreements
provide that directors and executive officers will be indemnified and held
harmless to the fullest possible extent permitted by law including against
all expenses (including attorneys' fees), judgments, fines and settlement
amounts paid or reasonably incurred by them in any action, suit or
proceeding, including any derivative action by or in the right of the
Registrant, on account of their services as directors, officers, employees or
agents of the Registrant or as directors, officers, employees or agents of
any other company or enterprise when they are
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serving in such capacities at the request of the Registrant. Neither the
Registrant nor Insignia Solutions, Inc. will be obligated pursuant to the
agreements to indemnify or advance expenses to an indemnified party with
respect to proceedings or claims (i) initiated by the indemnified party and
not by way of defense, except with respect to a proceeding authorized by the
Board of Directors and successful proceedings brought to enforce a right to
indemnification under the indemnity agreements; (ii) for any amounts paid in
settlement of a proceeding unless the Registrant consents to such settlement;
(iii) on account of any suit in which judgment is rendered against the
indemnified party for an accounting of profits made from the purchase or sale
by the indemnified party of securities of the Registrant pursuant to the
provisions of Section 16(b) of the Exchange Act and related laws; (iv) on
account of conduct by an indemnified party that is finally adjudged to have
been in bad faith or conduct that the indemnified party did not reasonably
believe to be in, or not opposed to, the best interests of the Registrant;
(v) on account of any criminal action or proceeding arising out of conduct
that the indemnified party had reasonable cause to believe was unlawful; or
(vi) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
The indemnity agreements are not exclusive of any rights a director or
executive officer may have under the Articles of Association, other agreements,
any majority-in-interest vote of the shareholders or vote of disinterested
directors, applicable law or otherwise.
The indemnification provision in the Articles of Association, and the
indemnity agreements, may be sufficiently broad to permit indemnification of the
Registrant's directors and executive officers for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"). In addition, the
Registrant has director and officer liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.01 Registrant's Articles of Association (incorporated herein by
reference to Exhibit 3.02 of the Registrant's Registration
Statement on Form F-1 (No. 33-98230) declared effective by the
Commission on November 13, 1995 (the "Form F-1").
4.02 Registrant's Memorandum of Association (incorporated herein by
reference to Exhibit 3.04 of the Form F-1).
4.03 Registration Rights Agreement, dated as of June 5, 1992, as amended
(incorporated herein by reference to Exhibit 4.02 of the Form F-1).
4.04 Deposit Agreement between Registrant and The Bank of New York
(incorporated herein by reference to Exhibit 4.03 of the
Registrant's Annual Report on Form 10-K (File No. 0-27012) for the
year ended December 31, 1995 (the "1995 10-K").
4.05 Form of American Depositary Receipt (included in Exhibit 4.05)
(incorporated herein by reference to Exhibit 4.04 of the 1995 10-K).
4.06 Registrant's 1995 Incentive Stock Option Plan for U.S. Employees
and related documents, as amended (incorporated herein by reference
to Exhibit 10.03 of the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1997).
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4.07 Registrant's U.K. Employee Share Option Scheme 1996 and related
documents, as amended (incorporated herein by reference to Exhibit
10.28 of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997).
4.08 Registrant's 1995 Employee Share Purchase Plan, as amended
(incorporated herein by reference to Exhibit 10.42 of the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 31, 1998).
5.01 Opinion of Macfarlanes.
23.01 Consent of Macfarlanes (included in Exhibit 5.01).
23.02 Consent of Independent Accountants.
24.01 Power of Attorney (see page 6).
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:
(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. 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 a 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 (1)(i) and (1)(ii) above 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.
(2) 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
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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
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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 indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions discussed in Item 6 hereof, 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 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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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 Santa Clara, State of California, on April 20, 1999.
INSIGNIA SOLUTIONS PLC
By: /s/ Richard M. Noling
---------------------------------
Richard M. Noling, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Richard M. Noling and Stephen M. Ambler, and each
of them, his true and lawful attorneys-in-fact and agents with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, 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 said attorneys-in-fact and agents or any of them, or his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ Richard M. Noling President, Chief Executive April 20, 1999
- -------------------------------- Officer and a Director
Richard M. Noling
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
/s/ Stephen M. Ambler Vice President and Chief April 20, 1999
- -------------------------------- Financial Officer
Stephen M. Ambler
ADDITIONAL DIRECTORS:
/s/ Nicholas, Viscount Bearsted Chairman of the Board and April 20, 1999
- -------------------------------- a Director
Nicholas, Viscount Bearsted
/s/ Albert E. Sisto Director April 20, 1999
- --------------------------------
Albert E. Sisto
/s/ Vincent S. Pino Director April 20, 1999
- --------------------------------
Vincent S. Pino
</TABLE>
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EXHIBIT INDEX
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Sequentially
Numbered
Exhibit No. Description Page
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<S> <C> <C>
4.01 Registrant's Articles of Association (incorporated herein by reference
to Exhibit 3.02 of the Registrant's Registration Statement on Form F-1
(No. 33-98230) declared effective by the Commission on November 13,
1995 (the "Form F-1").
4.02 Registrant's Memorandum of Association (incorporated herein by
reference to Exhibit 3.04 of the Form F-1).
4.03 Registration Rights Agreement, dated as of June 5, 1992, as amended
(incorporated herein by reference to Exhibit 4.02 of the Form F-1).
4.04 Deposit Agreement between Registrant and The Bank of New York
(incorporated herein by reference to Exhibit 4.03 of the Registrant's
Annual Report on Form 10-K (File No. 0-27012) for the year ended
December 31, 1995 (the "1995 10-K").
4.05 Form of American Depositary Receipt (included in Exhibit 4.05)
(incorporated herein by reference to Exhibit 4.04 of the 1995 10-K).
4.06 Registrant's 1995 Incentive Stock Option Plan for U.S. Employees and
related documents, as amended (incorporated herein by reference to
Exhibit 10.03 of the Registrant's Annual Report on Form 10-K for the
year ended December 31, 1997).
4.07 Registrant's U.K. Employee Share Option Scheme 1996 and related
documents, as amended (incorporated herein by reference to Exhibit
10.28 of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997).
4.08 Registrant's 1995 Employee Share Option Plan, as amended (incorporated
herein by reference to Exhibit 10.42 of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended September 31, 1998).
5.01 Opinion of Macfarlanes.
23.01 Consent of Macfarlanes (included in Exhibit 5.01).
23.2 Consent of Independent Accountants.
24.01 Power of Attorney (see page 6).
</TABLE>
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EXHIBIT 5.01
Insignia Solutions Plc
Kingsmead Business Park
London Road
High Wycombe
Buckinghamshire
HP11 1JU
Our Ref: DXD/SAXC/513239
20 April 1999
Dear Sirs
INSIGNIA SOLUTIONS PLC, FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
1 This opinion is given in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of
1.1 an additional 550,000 Ordinary Shares of 20p nominal value each (each
a "SHARE") in Insignia Solutions plc ("the Company"), which may be
issued pursuant to the Company's U.K. Employee Share Option Scheme
1996, as amended ("the 1996 Scheme") and the 1995 Incentive Stock
Option Plan for U.S. Employees ("the 1995 Plan"); and
1.2 an additional 250,000 Shares which may be issued pursuant to the
Company's 1995 Employee Share Purchase Plan, as amended, ("the
Purchase Plan")
under the terms of a form S8 Registration Statement a copy of which
has been provided to us ("the Registration Statement").
2 We have acted as English legal advisers to the Company in connection
with the foregoing. In so acting, we have examined such certificates
of the Company and directors and/or officers thereof and originals or
copies of all such corporate documents and records of the Company and
all such other documents as we have deemed relevant and necessary as a
basis for our Opinion hereinafter set forth. We have relied upon such
certificates of directors and/or officers of the Company and upon
statements and information furnished by directors and/or officers of
the Company with respect to the accuracy of material factual matters
contained therein. We have also assumed the genuineness of all
signatures thereon or on the originals of documents referred to
therein.
3 This Opinion is limited to English law as currently applied by the
English Courts and
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Page 2
is given on the basis that it will be governed by and be construed in
accordance with current English law.
4 It is our opinion that the additional 800,000 Shares that may be
issued upon the exercise of
4.1 options granted or to be granted under the 1996 Scheme;
4.2 options granted or to be granted under the 1995 Plan; and
4.3 purchase rights granted or to be granted under the Purchase Plan
when issued in accordance with the applicable scheme or plan and/or
options or purchase rights duly granted thereunder and the Company's
Memorandum and Articles of Association, will be legally issued, fully
paid and non-assessable.
5 For the purpose of this Opinion we have assumed that the term
"non-assessable" in relation to the Shares means under English law
that holders of such Shares having fully paid up all amounts due on
such Shares as to the nominal amount and premium thereon, are under
no further personal liability to contribute to the assets or
liabilities of the Company in their capacities purely as holders of
such Shares.
This Opinion is given to you solely for your benefit and for the purpose of the
Registration Statement. It is not to be transmitted to any other person nor is
to be relied upon by any other person or for any purpose or quoted or referred
to in any public document without our prior written consent except that we
consent to the use of this Opinion as an exhibit to the Registration Statement
and further consent to the references to us in the Registration Statement. In
giving this consent, we do not admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the Rules and
Regulations thereunder.
Yours faithfully
/s/Macfarlanes
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EXHIBIT 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 30, 1999, which appears in
Insignia Solutions plc's Annual Report on Form 10-K for the year ended December
31, 1998.
PricewaterhouseCoopers LLP
San Jose, California
April 16, 1999
