<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 12, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
ONYX SOFTWARE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
WASHINGTON 91-1629814
(State or other jurisdiction of incorporation or organization) (I.R.S. EMPLOYER IDENTIFICATION NO.)
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310 - 120th Avenue N.E.
BELLEVUE, WASHINGTON 98005
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
ONYX SOFTWARE CORPORATION 1998 STOCK INCENTIVE COMPENSATION PLAN
ONYX SOFTWARE CORPORATION AMENDED AND RESTATED 1994 COMBINED INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN
ONYX SOFTWARE CORPORATION 1998 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
BRENT R. FREI
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
ONYX SOFTWARE CORPORATION
310 - 120TH AVENUE N.E.
BELLEVUE, WASHINGTON 98005
(425) 451-8060
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
______________________
COPIES TO:
GREGORY GORDER
ALAN C. SMITH
GEOFFREY R. ENTRESS
PERKINS COIE LLP
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
______________________
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES NUMBER TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED(1) OFFERING PRICE AGGREGATE OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value, subject to
outstanding options with fixed exercise
prices under the:
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ONYX Software Corporation Amended and Restated 1994 138,500 $0.10(2) $ 13,850.00 $ 4.00
Combined Incentive and Nonqualified Stock Option 50,000 0.12(2) 6,000.00 2.00
Plan 880,783 0.20(2) 176,157.00 49.00
32,625 0.40(2) 13,050.00 4.00
663,984 0.70(2) 464,789.00 130.00
120,100 1.20(2) 144,120.00 41.00
31,700 1.50(2) 47,550.00 14.00
614,760 2.50(2) 1,536,900.00 428.00
12,000 3.50(2) 42,000.00 12.00
449,000 5.00(2) 2,245,000.00 625.00
66,700 9.00(2) 600,300.00 167.00
- ------------------------------------------------------------------------------------------------------------------------------------
ONYX Software Corporation 1998 Stock Incentive 134,500 $9.00(2) $1,210,500.00 $337.00
Compensation Plan
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Common Stock, $.01 par value, not subject to
outstanding options or not having fixed exercise
prices under the:
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ONYX Software Corporation 1998 Stock Incentive 4,935,271 $13.00(3) $64,158,523.00 $17,837.00
Compensation Plan
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ONYX Software Corporation 1998 Employee Stock 900,000 $13.00(3) $11,700,000.00 $ 3,253.00
Purchase Plan
====================================================================================================================================
TOTAL: 9,029,923 $22,903.00
====================================================================================================================================
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(1) Based on shares subject to outstanding options or reserved for future
issuance pursuant to employee benefit plans as of February 10, 1999.
Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
such employee benefit plans as the result of any future stock split, stock
dividend or similar adjustment of the registrant's outstanding Common
Stock.
(2) Computed pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, based upon the exercise prices of options granted as of the filing
date of this Registration Statement.
(3) Estimated as of February 11, 1999, solely for the purpose of calculating
the registration fee pursuant to Rule 457(c) under the Securities Act of
1933, as amended. The proposed maximum offering price is $13.00, which is
the initial offering price of the Common Stock.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The registrant's prospectus (the "Prospectus") filed with the
Securities and Exchange Commission (the "Commission") on February 12, 1999
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the
"Securities Act");
(b) The description of the registrant's Common Stock contained in the
Registration Statement on Form 8-A filed on February 8, 1999, under Section
12(g) of the Exchange Act, including any amendments or reports for the purpose
of updating such description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment, which indicates that the securities offered hereby
have been sold or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Section 10 of the registrant's Amended and Restated Bylaws
provides for indemnification of the registrant's directors, officers, employees
and agents to the maximum extent permitted by Washington law. The directors and
officers of the registrant also may be indemnified against liability they may
incur for serving in that capacity pursuant to a liability insurance policy
maintained by the registrant for such purpose.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, knowing violations of law or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Section 5.2 of the registrant's Third Amended and Restated Articles
of Incorporation, as amended by Articles of Amendment, contains provisions
implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the registrant and its shareholders.
The registrant has entered into certain indemnification agreements with its
officers and directors. The indemnification agreements provide the registrant's
officers and directors with indemnification to the maximum extent permitted by
the WBCA.
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ITEM 8. EXHIBITS
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Exhibit
Number Description
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<C> <S>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being
registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 ONYX Software Corporation 1998 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.9 to the Registration Statement on Form S-1)
99.2 ONYX Software Corporation 1998 Stock Incentive Compensation Plan
(incorporated by reference to Exhibit 10.8 to the Registration Statement on
Form S-1)
99.3 ONYX Software Corporation Amended and Restated 1994 Combined Incentive and
Nonqualified Stock Option Plan (incorporated by reference to Exhibit 10.7 to
the Registration Statement on Form S-1)
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ITEM 9. UNDERTAKINGS
A. 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 this 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 this Registration
Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this 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 by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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 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.
B. 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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.
II-2
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C. 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 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.
II-3
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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 Bellevue, State of Washington, on the eleventh day of
February, 1999.
ONYX SOFTWARE CORPORATION
By: /s/ BRENT R. FREI
--------------------------------------------
Brent R. Frei, President and Chief Executive
Officer
Each person whose individual signature appears below hereby authorizes
Brent R. Frei and Sarwat H. Ramadan, or either of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on the behalf of
each person, individually and in each capacity stated below, and to file, any
and all amendments to this Registration Statement, including any and all post-
effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the eleventh day of February, 1999.
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<CAPTION>
SIGNATURE Title
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<S> <C>
/s/ BRENT R. FREI President, Chief Executive Officer and Chairman of the Board
- ------------------------------ (Principal Executive Officer)
Brent R. Frei
/s/ SARWAT H. RAMADAN Vice President, Chief Financial Officer, Secretary and
- ------------------------------ Treasurer (Principal Financial and Accounting Officer)
Sarwat H. Ramadan
/s/ TODD A. STEVENSON Director
- ------------------------------
Todd A. Stevenson
/s/ H. RAYMOND BINGHAM Director
- ------------------------------
H. Raymond Bingham
/s/ WILLIAM B. ELMORE Director
- ------------------------------
William B. Elmore
/s/ JAY C. HOAG Director
- ------------------------------
Jay C. Hoag
/s/ PAUL G. KOONTZ Director
- ------------------------------
Paul G. Koontz
/s/ DANIEL R. SANTELL Director
- ------------------------------
Daniel R. Santell
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
Number Description
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<C> <S>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being
registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 ONYX Software Corporation 1998 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.9 to the Registration Statement on Form S-1)
99.2 ONYX Software Corporation 1998 Stock Incentive Compensation Plan
(incorporated by reference to Exhibit 10.8 to the Registration Statement on
Form S-1)
99.3 ONYX Software Corporation Amended and Restated 1994 Combined Incentive and
Nonqualified Stock Option Plan (incorporated by reference to Exhibit 10.7 to
the Registration Statement on Form S-1)
</TABLE>
<PAGE>
EXHIBIT 5.1
[PERKINS COIE LLP LETTERHEAD]
February 11, 1999
ONYX Software Corporation
310 - 120th Avenue N.E.
Bellevue, Washington 98005
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to 9,029,923 shares of Common
Stock, par value $.01 per share (the "Shares"), which may be issued as follows:
900,000 shares pursuant to the ONYX Software Corporation 1998 Employee Stock
Purchase Plan; 5,069,771 shares pursuant to the ONYX Software Corporation 1998
Stock Incentive Compensation Plan; and 3,060,152 shares pursuant to the ONYX
Software Corporation Amended and Restated 1994 Combined Incentive and
Nonqualified Stock Option Plan.
Based upon and subject to the foregoing, we are of the opinion that any
original issuance Shares that may be issued pursuant to the plans have been duly
authorized and that, upon the due execution by the Company and the registration
by its registrar of such Shares and the sale thereof by the Company in
accordance with the terms of the plans, and the receipt of consideration
therefor in accordance with the terms of the plans, such Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ PERKINS COIE LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the ONYX Software Corporation 1998 Stock Incentive
Compensation Plan, ONYX Software Corporation Amended and Restated 1994 Combined
Incentive and Nonqualified Stock Option Plan and ONYX Software Corporation 1998
Employee Stock Purchase Plan of our report dated February 4, 1999 with respect
to the consolidated financial statements of ONYX Software Corporation included
in its Registration Statement (Amendment No. 3 to Form S-1) filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
February 11, 1999
