<PAGE>
As filed with the Securities and Exchange Commission on August 14, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
____________________________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________________________________
MODACAD, INC.
______________________________________________________
(Exact name of registrant as specified in its charter)
California 95-4145930
________________________________________ _____________________
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3861 Sepulveda Boulevard
Culver City, California 90230
_________________________________________ _____________________
(Address Of Principal Executive Offices) (Zip Code)
____________________________________________
1995 STOCK OPTION PLAN
(Full title of the plan)
____________________________________________
JOYCE FREEDMAN
Chief Executive Officer and Chairman of the Board
ModaCAD, Inc.
3861 Sepulveda Boulevard
Culver City, California 90230
(310) 751-2100
(Name, address and telephone number of agent for service)
_________________________________________________________
Copies To:
JOHN A. ST. CLAIR, ESQ.
SYLVIA K. BURKS, ESQ.
Coudert Brothers
1055 West Seventh Street, 20th Floor
Los Angeles, California 90017
(213) 688-9088
____________________________________________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
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CALCULATION OF REGISTRATION FEE
Proposed
Title of Amount Proposed Maximum
Securities of Shares Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered per Share Price Fee
- -------------- -------------- ------------------ -------------- -------------
Common Stock 900,000(1) $19.9375(2) $17,943,750(2) $ 5,294
no par value
(1) Represents shares of Common Stock ("Common Stock") of ModaCAD, Inc. (the
"Registrant") issuable upon the exercise of options granted or to be
granted pursuant to the Registrant's 1995 Stock Option Plan (the "Plan").
Pursuant to Rule 416, there are also being registered such additional
shares of Common Stock as may become issuable as a result of the
antidilution provisions applicable to the options which are exercisable for
the Common Stock registered hereunder.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of the registration fee based on the average of the high and low
reported sale prices of a share of the Registrant's Common Stock on August
10, 1998 as reported by The Nasdaq National Market.
_________________________
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus prepared in accordance with Part I hereof also relates to shares
of Common Stock previously registered under Registration Statements on Form
S-8 (Registration Nos. 333-21775 and 333-35987).
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Part I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Items 1 and 2 of
Part I of Form S-8 will be sent or given to plan participants as specified in
Rule 428(b)(1) and, in accordance with the instructions to Part I, are not filed
with the Commission as part of this Registration Statement.
Part II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
In connection with the registration of additional shares of the Common
Stock of the Registrant issuable under the Plan, and in accordance with General
Instruction E to Form S-8, the following documents and information previously
filed with the Securities and Exchange Commission are hereby incorporated by
reference in this Registration Statement:
Item 3(a)
The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended December 31, 1997.
Item 3(b)
The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended March 31, 1998.
The Registrant's Quarterly Report on Form 10-QSB for the fiscal
quarter ended June 30, 1998.
Item 3(c)
Item 1 of the Registrant's Registration Statement on Form 8-A, filed
with the Commission on March 28, 1996, pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended.
The Registrant's Registration Statement on Form S-8, filed with the
Commission on February 14, 1997 (File No. 333-21775), is hereby
incorporated by reference in this Registration Statement.
The Registrant's Registration Statement on Form S-8, filed with the
Commission on September 19, 1997 (File No. 333-35987), is hereby
incorporated by reference in this Registration Statement.
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
offered hereunder 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 8. Exhibits.
Exhibit
Number
- -------
4.1 Amended and Restated Articles of Incorporation(1)
4.2 Bylaws, as amended(1)
4.3 1995 Stock Option Plan including forms of Stock Option Agreements and
Stock Purchase Agreement(1)
4.4 Amendment No.1 to 1995 Stock Option Plan, dated November 26, 1996(2)
4.5 Amendment No.2 to 1995 Stock Option Plan, dated June 10, 1997(2)
4.6 Amendment No.3 to 1995 Stock Option Plan, dated April 8, 1998(3)
4.7 Amendment No.4 to 1995 Stock Option Plan, dated July 8, 1998
5.1 Opinion of Coudert Brothers
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
23.2 Consent of Coudert Brothers (included in Exhibit 5.1)
24.1 Power of Attorney (see page 2 of this Registration Statement)
(1) Incorporated by reference to the Registrant's Registration Statement on
Form SB-2 (Registration No. 333-1166-LA) as filed with the Commission on
February 7, 1996.
(2) Incorporated by reference to the Registrant's Registration Statement on
Form S-8 (Registration No. 333-35987) as filed with the Commission on
September 19, 1997.
(3) Incorporated by reference to the Registrant's Quarterly Report on Form
10-QSB for the quarter ended June 30, 1998, as filed with the Commission on
August 5, 1998.
1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Culver City, State of California, on August 12, 1998.
ModaCAD, Inc.
By:/s/ JOYCE FREEDMAN
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Joyce Freedman
Chief Executive Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Joyce Freedman and Lee Freedman, or either
of them, his or her attorneys-in-fact and agents, each with full power of
substitution for him or her and in his or her name, place and stead, in any and
all capacities, to sign any or all amendments to this registration statement,
and to file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each of
said attorneys-in-fact and agents full power and authority to do so and perform
each and every act and thing requisite and necessary to be done in connection
with this registration statement, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that either
of said attorneys-in-fact and agents, or his or her substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- ---------------------- --------------------------------- ----------------
/s/ JOYCE FREEDMAN Chief Executive Officer, Chairman August 12, 1998
- ---------------------- of the Board and Director
Joyce Freedman (Principal Executive Officer)
/s/ MAURIZIO VECCHIONE President, Chief Operating Officer August 12, 1998
- ---------------------- And Director
Maurizio Vecchione
/s/ LEE FREEDMAN Vice President, Finance, August 12, 1998
- ---------------------- Chief Financial Officer, Treasurer
Lee Freedman and Director (Principal Financial
Officer)
/s/ LEON SHIH Controller August 12, 1998
- ----------------------
Leon Shih
/s/ ANDREA VECCHIONE Secretary and Director August 12, 1998
- ----------------------
Andrea Vecchione
/s/ F. STEPHEN WYLE Director August 12, 1998
- ----------------------
F. Stephen Wyle
/s/ PETER FRANK Director August 12, 1998
- ----------------------
Peter Frank
/s/ LESLIE SALESON Director August 12, 1998
- ----------------------
Leslie Saleson
2
<PAGE>
EXHIBIT INDEX
Number Description
- -------- ---------------------------------------------------
4.7 Amendment No. 4 to 1995 Stock Option Plan
5.1 Opinion of Coudert Brothers
23.1 Consent of Singer Lewak Greenbaum & Goldstein LLP
3
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AMENDMENT NO. 4 TO
MODACAD, INC.
1995 STOCK OPTION PLAN
ModaCAD Inc.'s 1995 Stock Option Plan, as previously amended by Amendment
No. 1 dated November 26, 1996; Amendment No. 2 dated June 10, 1997; and
Amendment No. 3 dated April 8, 1998 (as so amended, the "Plan"), is hereby
further amended as follows:
1. Section 1 of the Plan shall be amended by adding the words ", and
consultants to," after the words "Employees of" in the second and fourth
lines thereof.
2. Subsection 2(n) of the Plan shall be amended to read in its entirety as
follows:
(n) "Option" shall mean a stock option granted pursuant to the Plan
evidencing the grant of a right to an Optionee pursuant to the Plan to
purchase a specified number of Shares at a specified exercise price.
3. Subsection 2(q) of the Plan shall be amended to read in its entirety as
follows:
(q) "Optionee" shall mean an Employee or a consultant to the Company
who is granted an Option.
4. Subsection 2(w) of the Plan shall be amended to read in its entirety as
follows:
(w) "Termination for Cause" shall mean termination of employment or
consultancy relationship between the Company and the Optionee as a result
of (i) any act or acts by the Optionee constituting a felony under any
federal, state or local law; (ii) the Optionee's willful and continued
failure to perform the duties assigned to him or her as an Employee or a
consultant (iii) any material breach by the Optionee of any agreement with
the Company concerning his or her employment or consultancy relationship or
other understanding concerning the terms and conditions of employment by
the Company or consultancy relationship; (iv) dishonesty, gross negligence
or malfeasance by the Optionee in the performance of his or her duties as
an Employee or a consultant or any conduct by the Optionee which involves a
material conflict of interest with any business of the Company or
Affiliate; or (v) the Optionee's taking or knowingly omitting to take any
other action or actions in the performance of Optionee's duties as an
Employee or a consultant without informing appropriate members of
management to whom such Optionee reports, which action or actions, in the
determination of the Board, have caused or substantially contributed to the
material deterioration in the business or financial condition of the
Company or any Affiliate, taken as a whole.
5. Subsection 4(b) of the Plan shall be amended to read in its entirety as
follows:
(b) Powers of the Board. Subject to the provisions of the Plan, the
Board shall have the authority, in its discretion: (i) to grant Incentive
Stock Options and Nonstatutory Stock Options; (ii) to determine, upon
review of relevant information and in accordance with Section 7 of the
Plan, the fair market value per Share; (iii) to determine the terms and
conditions of vesting of Options, the exercise price of the Options and the
consideration to be paid for shares upon the exercise of Options (which
exercise price and consideration shall be determined in accordance with
Section 7 of the Plan); (iv) to determine the Employees or consultants to
whom, and the time or times at which, Options shall be granted, and the
number of Shares to be subject to each Option; (v) to prescribe, amend and
rescind rules and regulations relating to the Plan; (vi) to determine the
terms and provisions of each Option Agreement and each Stock Purchase
Agreement (each of which need not be identical with the terms of other
Options and Stock Purchase Agreements) and, with the consent of the holder
thereof, to modify or amend each Option and Stock Purchase Agreement; (vii)
to determine whether a stock repurchase agreement or other agreement will
be required to be executed by any Employee or consultant as a condition to
the exercise of an Option, and to determine the terms and provisions of any
such agreement (which need not be identical with the terms of any other
such agreement) and, with the consent of the Optionee, to amend any such
agreement; (viii) to interpret the Plan, the Option Agreements, the Stock
Purchase Agreements or any agreement entered into with respect to the grant
or exercise of Options; (ix) to authorize any person to execute on behalf
of the Company any instrument required to effectuate the grant of an Option
previously granted by the Board or to take such other actions as may be
necessary or appropriate with respect to the Company's rights pursuant to
Options or agreements relating to the grant or exercise thereof: and (x) to
make such other determinations and establish such other procedures as it
deems necessary or advisable for the administration of the Plan.
6. Section 5 of the Plan shall be amended to read in its entirety as follows:
5. Eligibility. Options may be granted to Employees (including
employees of the Company who are also directors of the Company) and
consultants of the Company. An Employee or consultant who has been granted
an option may, if such Employee or consultant is otherwise eligible, be
granted additional Options.
7. Subsection 8(b) of the Plan shall be amended to read in its entirety as
follows:
(b) Number of Shares. Each Option Agreement shall state the number of
Shares to which it pertains and whether such Option is intended to
constitute an Incentive Stock Option or a Nonstatutory Stock Option. The
maximum number of Shares which may be awarded as Options under the Plan
during any calendar year to any Optionee is 385,094 Shares. If an Option
held by an Employee or a consultant is canceled, the canceled Option shall
continue to be counted against the maximum number of Shares for which
Options may be granted to such Employee or consultant and any replacement
Option granted to such Employee or consultant shall also count against such
limit.
8. Subsection 8(d)(ii) of the Plan shall be amended to read in its entirety as
follows:
(ii) Termination of Status as an Employee or a Consultant. If an
Optionee ceases to serve as an Employee or a consultant for any reason
other than death, Disability or Termination for Cause, and thereby
terminates his or her Continuous Employment with the Company or status as a
consultant, to the extent that such Optionee was entitled to exercise the
Option at the date of such termination, such Optionee shall have the right
to exercise the Option at any time within 30 days subsequent to the last
day of such Optionee's Continuous Employment with the Company or status as
a consultant (unless at the time of grant of such Option the Board
specified a longer period, not to exceed 90 days), provided, however, that
no Option shall be exercisable after the expiration of the term set forth
in the Option Agreement. To the extent that such Optionee was not entitled
to exercise the Option at the date of the terminating event, or if such
Optionee does not exercise such Option (which such Optionee was entitled to
exercise) within the time specified herein, the Option shall terminate. In
the event that an Optionee's Continuous Employment with the Company or
status as a consultant terminates due to death or Disability, to the extent
that such Optionee was entitled to exercise the Option at the date of such
termination, the Option may be exercised any time within 180 days
subsequent to the death or Disability of the Optionee (unless at the time
of grant of such Option the Board specified a longer period, not to exceed
one year), provided, however, that no Option shall be exercisable after the
expiration of the Option term set forth in the Option Agreement. To the
extent that such Optionee was not entitled to exercise such Option at the
date of his or her termination due to death or Disability or if such Option
is not exercised (to the extent it could be exercised) within the time
specified herein, the Option shall terminate. If an Optionee's Continuous
Employment with the Company or status as a consultant terminates due to his
or her Termination for Cause, his or her Option shall terminate as of the
date of such Termination for Cause to the extent not exercised as of such
date.
9. Section 11 of the Plan shall be amended to read in its entirety as follows:
11. Time of Granting Options. The date of grant of an Option shall,
for all purposes, be the date on which the Board makes the determination
granting such Option, provided, however, that if the Board determines that
such grant shall be as of some future date, the date of grant shall be such
future date. Notice of the determination shall be given to each Employee or
consultant to whom an Option is so granted within a reasonable time after
the date of such grant.
10. Section 22 of the Plan shall be amended to read in its entirety as follows:
22. Notices. Any notice to be given to the Company pursuant to the
provisions of this Plan shall be given in writing, addressed to the Company
in care of its Secretary at its principal office, and any notice to be
given to an Employee or a consultant to whom an Option is granted hereunder
shall be delivered personally or addressed to him or her at the address
given beneath his or her signature on his Option Agreement or Stock
Purchase Agreement or at such other address as such Optionee or his or her
transferee (upon the transfer of the Optioned Stock) may hereafter
designate in writing to the Company. Any such notice shall be deemed duly
given when enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, registered or certified, and deposited, postage and registry or
certification fee prepaid, in a post office or branch post office regularly
maintained by the United States Postal Service. It shall be the obligation
of each Optionee and each transferee holding Shares purchased upon exercise
of an Option to provide the Secretary of the Company, by letter mailed as
provided hereinabove, with written notice of his or her direct mailing
address.
11. Section 23 of the Plan shall be amended to read in its entirety as follows:
23. No Enlargement of Employee or Consultant Rights. This Plan is
purely voluntary on the part of the Company, and the continuance of the
Plan shall not be deemed to constitute a contract between the Company and
any Employee or consultant, or to be consideration for or a condition of
the employment or service of any Employee or consultant. Nothing contained
in this Plan shall be deemed to give any Employee or consultant the right
to be retained in the employ or service of the Company, its Parent,
Subsidiary or a successor corporation, or to interfere with the right of
the Company or any such corporations to discharge or to retire any Employee
or consultant at any time with or without cause and with or without notice.
No Employee or consultant shall have any right to or interest in Options
authorized hereunder prior to the grant thereof to such Employee or
consultant, and upon such grant he or she shall have only such rights and
interests as are expressly provided herein, subject, however, to all
applicable provisions of the Company's Articles of Incorporation, as the
same may be amended from time to time.
Dated: July 2, 1998
<PAGE>
August 14, 1998
ModaCAD, Inc.
3861 Sepulveda Boulevard
Culver City, California 90230
Re: ModaCAD, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as securities counsel for ModaCAD, Inc. (the "Company") in
connection with the preparation of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933 to be filed with the
Securities and Exchange Commission (the "Commission") on August 14, 1998, in
connection with the registration of 900,000 shares of Common Stock, without par
value (the "Shares"), issuable upon the exercise of options granted or to be
granted pursuant to the Company's 1995 Stock Option Plan (the "Plan").
In connection with the preparation of the Registration Statement and the
proposed issuance and sale of the Shares in accordance with the Plan and the
Form S-8 prospectus to be delivered to participants in the Plan, we have made
certain legal and factual examinations and inquiries and examined, among other
things, such documents, records, instruments, agreements, certificates and
matters as we have considered appropriate and necessary for the rendering of
this opinion. We have assumed for the purpose of this opinion the authenticity
of all documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies, and the genuineness of the
signatures thereon. As to various questions of fact material to this opinion, we
have, when relevant facts were not independently established, relied, to the
extent deemed proper by us, upon certificates and statements of officers and
representatives of the Company.
Based on the foregoing and in reliance thereon, it is our opinion that the
Shares have been duly authorized and, after the Registration Statement becomes
effective and after any post-effective amendment required by law is duly
completed, filed and becomes effective (such Registration Statement as it
finally becomes effective or, if required to be post-effectively amended, then
as it is so amended, is referred to hereinafter as the "Final Registration
Statement"), and when the applicable provisions of "Blue Sky" and other state
securities laws shall have been complied with, and when the Shares are issued
and sold in accordance with the Plan and the Form S-8 prospectus prepared in
connection with the Final Registration Statement, the Shares will be legally
issued, fully paid and nonassessable.
We hereby consent to the inclusion of our opinion as Exhibit 5.1 to the
Registration Statement and further consent to the references to this firm in the
Registration Statement. In giving this consent, we do not hereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the rules and regulations of the
Commission thereunder.
This opinion is rendered solely for your benefit in accordance with the
subject transaction and is not to be otherwise used, circulated, quoted or
referred to without our prior written consent. We are opining herein as to the
effect on the subject transaction only of United States federal law and the
internal (and not the conflict of law) laws of the State of California, and we
assume no responsibility as to the applicability thereto, or the effect thereon,
of the laws of any other jurisdiction.
Very truly yours,
/s/ COUDERT BROTHERS
--------------------
COUDERT BROTHERS
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 2, 1998 accompanying the financial
statements included in the Annual Report of ModaCAD, Inc. on Form 10-KSB for the
year ended December 31, 1997. We hereby consent to the incorporation by
reference of said report in the Registration Statement of ModaCAD, Inc. on Form
S-8.
/s/ SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
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SINGER LEWAK GREENBAUM & GOLDSTEIN LLP
Los Angeles, California
August 14, 1998
