<PAGE> 1
As filed with the Securities and Exchange Commission on December 10, 1996
Registration No.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AWARD SOFTWARE INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
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CALIFORNIA 94-2893462
(State of Incorporation) (I.R.S. Employer Identification No.)
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777 EAST MIDDLEFIELD ROAD
MOUNTAIN VIEW, CALIFORNIA 94043
(415) 968-4433
(Address and telephone number of principal executive offices)
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1995 STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
GEORGE C. HUANG
Chairman of the Board, President
and Chief Executive Officer
777 East Middlefield Road
Mountain View, California 94043
(415) 968-4433
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------
Copies to:
JAMES C. KITCH, ESQ.
MATTHEW P. FISHER, ESQ.
COOLEY GODWARD LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(415) 843-5000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
REGISTERED REGISTERED (1) (1) FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock 1,349,709 $1.00-$11.00 $7,382,145 $2,237
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon (a) the weighted average exercise price for
options granted pursuant to the Registrant's 1995 Stock Option Plan and (b) the
average of the bid and ask prices of Registrant's Common Stock on December 4,
1996 as reported on the Nasdaq National Market.
Exhibit Index at Page 6
<PAGE> 2
The chart below details the calculations of the registration fee.
<TABLE>
<CAPTION>
NUMBER OFFERING PRICE PER AGGREGATE
SECURITIES OF SHARES SHARE OFFERING PRICE
- ---------- --------- ----- --------------
<S> <C> <C> <C>
Shares issuable pursuant to
the 1995 Stock Option Plan 610,800 $1.00(1)(a) $610,800
Shares issuable pursuant to
the 1995 Stock Option Plan 32,105 $5.00(1)(a) $160,525
Shares issuable pursuant to
the 1995 Stock Option Plan 7,500 $6.00(1)(a) $45,000
Shares issuable pursuant to
the 1995 Stock Option Plan 261,250 $10.00(1)(a) $2,612,500
Shares issuable pursuant to
the 1995 Stock Option Plan 42,500 $11.00(1)(a) $467,500
Shares issuable pursuant to
the 1995 Stock Option Plan 245,554 $8.8125(1)(b) $2,163,945
Shares issuable pursuant to
the 1996 Employee Stock
Purchase Plan 150,000 $8.8125(1)(b) $1,321,875
Proposed Maximum
Offering Price $7,382,145
Registration Fee $2,237
</TABLE>
iii.
<PAGE> 3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Award Software International, Inc., a
California corporation (the "Registrant" or the "Company"), with the Securities
and Exchange Commission (the "SEC") are incorporated by reference into this
Registration Statement:
(a) The Registrant's final prospectus filed October 25, 1996 pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (the "Act").
(b) The description of the Registrant's Common Stock which is contained
in the Registration Statement on Form 8-A filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), with the SEC on June 5, 1996.
All reports and other 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
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company will indemnify its
directors, and may indemnify its officers, employees and other agents, to the
fullest extent not prohibited by California law. The Company is also empowered
under its Bylaws to enter into indemnification agreements with its directors,
officers, employees and other agents and to purchase insurance on behalf of any
person whom it is required or permitted to indemnify. The Company has entered
into indemnity agreements with each of its directors and executive officers.
In addition, the Company's Amended and Restated Articles of
Incorporation provide that, to the fullest extent permitted by California law,
the Company's directors will not be liable for monetary damages for breach of
the directors' fiduciary duty of care to the Company and its shareholders. This
provision in the Amended and Restated Articles of Incorporation does not
eliminate the duty of care, and in appropriate circumstances, equitable remedies
such as an injunction or other forms of non-monetary relief would remain
available under California law. Each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company for acts
or omissions not in good faith or involving intentional misconduct or knowing or
culpable violations of law that the director believes to be contrary to the best
interests of the Company or its shareholders, for acts or omissions involving a
reckless disregard for the director's duty to the Company or its shareholders
when the director was aware or should have been aware of a risk of serious
injury to the Company or its shareholders, or an unexcused pattern of
inattention that amounts to an abdication of the director's duty to the Company
or its shareholders, for improper transactions between the director and the
Company or for improper distributions to shareholders and loans to directors and
officers, or for acts or omissions by the director as an officer. This provision
also does not affect a director's responsibilities under any other laws, such as
the federal securities laws or state or federal environmental laws.
1.
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UNDERTAKINGS
(C) 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 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;
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)(i) and (a)(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 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 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, 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.
(D) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(E) Insofar as indemnification for liabilities arising under 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 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.
2.
<PAGE> 5
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1* 1995 Stock Option Plan, as amended
99.2* Form of Incentive Stock Option
99.3* Form of Nonstatutory Stock Option
99.4* 1996 Employee Stock Purchase Plan
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* Filed as an exhibit to the Registration Statement on Form S-1 (No.
333-05107), as amended through the date hereof and incorporated by
reference herein.
3.
<PAGE> 6
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 Mountain View, State of California, on December
10, 1996.
AWARD SOFTWARE INTERNATIONAL, INC.
By: \s\ George Huang
---------------------------------------
George C. Huang
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George C. Huang and Kevin J. Berry, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, 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, and to file the same,
with all exhibits thereto, and other 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 connection therewith,
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 their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
4.
<PAGE> 7
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
\s\ George Huang Chairman of the Board, President, December 10, 1996
- ------------------------ Chief Executive Officer and
George C. Huang Director (Principal Executive
Officer)
\s\ Kevin Berry Vice President, Finance, Chief December 10, 1996
- ------------------------ Financial Officer and Secretary
Kevin J. Berry (Principal Financial and
Accounting Officer)
\s\ Cheng Ming Lee Director December 10, 1996
- ------------------------
Cheng Ming Lee
\s\ David S. Lee Director December 10, 1996
- ------------------------
David S. Lee
Director December __, 1996
- ------------------------
Theodore L. Lieven
\s\ Masami Maeda Director December 10, 1996
- ------------------------
Masami Maeda
\s\ Anthony Sun Director December 10, 1996
- ------------------------
Anthony Sun
\s\ William Tai Director December 10, 1996
- ------------------------
William P. Tai
</TABLE>
5.
<PAGE> 8
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature page.
99.1* 1995 Stock Option Plan, as amended
99.2* Form of Incentive Stock Option
99.3* Form of Nonstatutory Stock Option
99.4* 1996 Employee Stock Purchase Plan
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* Filed as an exhibit to the Registration Statement on Form S-1
(No. 333-05107), as amended through the date hereof.
6.
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EXHIBIT 5.1
[LETTERHEAD Cooley Godward LLP]
December 9, 1996
Award Software International, Inc.
777 East Middlefield Road
Mountain View, CA 94043
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Award Software International, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of (i) up to 1,199,709
shares of the Company's common stock (the "Common Stock") pursuant to its 1995
Stock Option Plan (the "Plan"), and (ii) up to 150,000 shares of Common Stock
pursuant to its 1996 Employee Stock Purchase Plan (the "Purchase Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws and such other documents, records, certificates,
memoranda and other instruments as we deem necessary as a basis for this
opinion. We have assumed the genuineness and authenticity of all documents
submitted to us as originals, the conformity to originals of all documents
submitted to us as copies thereof, and the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the shares of Common Stock, when sold and issued in accordance with the
Plan, the Purchase Plan, the Registration Statement and related Prospectus, will
be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: \s\ James C. Kitch
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James C. Kitch
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 29, 1996, except for Note 11,
which is as of August 21, 1996, which appears on page F-2 of the Registration
Statement on Form S-1 (No. 333-05107) of Award Software International, Inc. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page S-1 of such Registration Statement on
Form S-1.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Jose, California
December 9, 1996
