<PAGE> 1
Registration No.
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MULTICOM PUBLISHING, INC.
(Exact name of registrant as specified in its charter)
Washington 91-1551337
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1100 Olive Way, Suite 1250
Seattle, WA 98101
(Address of principal executive offices) (Zip code)
MULTICOM PUBLISHING, INC.
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
1996 OUTSIDE DIRECTORS STOCK OPTION PLAN
INDIVIDUAL OPTION AGREEMENTS
(Full title of the plan)
Tamara L. Attard
Chairman and Chief Executive Officer
Multicom Publishing, Inc.
188 Embarcadero, 7th Floor
San Francisco, CA 94105
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 415/777-5300
This registration statement, including all exhibits and attachments, contains 26
pages. The exhibit index may be found on page 8 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share1 price1 fee
- --------------------------------------------------------------------------------------------------------------------
Amended and Restated 1994 Stock Option Plan
<S> <C> <C> <C> <C>
Common Stock 666,608 $6.38 $4,252,959.04 $ 1,466.55
Par Value $.01 582,544 $4.91 $2,860,291.04 $ 986.31
(including options
to acquire such
Common Stock)
Individual Stock Option Agreements
Common Stock 499,000 $0.78 $ 389,220.00 $ 134.21
Par Value $.01
(including options
to acquire such
Common Stock)
1996 Outside Directors Stock Option Plan
Common Stock 92,500 $6.38 $ 590,150.00 $ 203.50
Par Value $.01 7,500 $6.50 $ 48,750.00 $ 16.81
(including options
to acquire such
Common Stock)
TOTAL 1,848,152 $8,141,370.08 $ 2,807.38
</TABLE>
- --------
1 Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options,
the price is computed on the basis of the weighted average exercise price. As to
the remaining shares, the price is based upon the average of the high and low
prices of the Common Stock on July 15, 1996, as reported on the National
Association of Securities Dealers Automated Quotations System small cap market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Multicom Publishing, Inc. (the "Company") hereby incorporates
by reference in this registration statement the following documents:
(a) The Company's latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Securities Act")
containing audited financial statements for the Company's latest fiscal year
ended June 30, 1995. The prospectus is included in the Company's Registration
Statement on Form SB-2 (No. 333-4704-LA, effective June 24, 1996).
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the fiscal year covered by the registrant document referred to in (a)
above.
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form SB-2 (No. 333-4704-LA, effective
June 24, 1996) filed under the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
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Item 6. Indemnification of Directors and Officers
The Washington Business Corporations Act includes a provision
(Section 23B.08.320 of the Revised Code of Washington) that permits a
corporation to limit a director's liability to the corporation or its
shareholders for monetary damages for his or her acts or omissions as a
director, except in certain circumstances involving intentional misconduct, self
dealing or illegal corporate loans or distributions, or any transaction from
which the director personally benefits. Such indemnification may continue as to
a person who has ceased to be a director, officer, employee or agent of the
Company and shall insure to the benefit of his or her heirs and personal
representatives.
The Company has adopted provisions in its Articles of
Incorporation which eliminate the personal liability of its directors to the
Company and its shareholders for monetary damages for breach or alleged breach
of their duty of care. The Bylaws of the Company provide for indemnification of
its directors, officers, employees and agents to the full extent permitted by
the Washington Business Corporations Act or other applicable law. The Washington
Business Corporations Act (Sections 23B.08.500 through 23B.08.600 of the Revised
Code of Washington) authorizes a court to award, or a corporation's Board of
Directors to grant, indemnity to directors and officers in terms sufficiently
broad to permit such indemnification under certain circumstances for liabilities
arising under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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 of 1933;
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(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)(1)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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) Filing incorporating subsequent Exchange Act documents by reference
The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, 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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and is, therefore,
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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 Act and will be governed by the final adjudication of
such issue.
SIGNATURE
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 San Francisco, State of California on July 16,
1996.
Multicom Publishing, Inc.
By: /s/ Tamara L. Attard
--------------------------------------
Tamara L. Attard, Chairman of the
Board of Directors and Chief
Executive Officer
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POWER OF ATTORNEY
The officers and directors of Multicom Publishing, Inc. whose
signatures appear below, hereby constitute and appoint Tamara L. Attard and
Ellen R. M. Boyer, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or her
substitutes, shall 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 indicated
on July 16, 1996.
Signature Title
- ------------------------------------------------------------------------------
/s/ Tamara L. Attard
- --------------------------
Tamara L. Attard Chief Executive Officer and Chairman of
the Board (Principal Executive Officer)
/s/ Paul G. Attard
- --------------------------
Paul G. Attard President, Chief Operating Officer and
Director
/s/ Ellen R. M. Boyer
- --------------------------
Ellen R. M. Boyer Vice President, Finance and
Administration and Chief Financial Officer
(Principal Financial and Accounting
Officer)
/s/ Larry Hartsook
- --------------------------
Larry Hartsook Director
/s/ William H. Luden III
- --------------------------
William H. Luden III Director
/s/ Henrik Vanderlip
- --------------------------
Henrik Vanderlip Director
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered Page
-------------
<S> <C> <C>
4.1 Certificate of Information to Amended and
Restated Articles of Incorporation of the
Company 09
4.2 Amended and Restated Articles of
Incorporation of the Company 16
4.3 Restated Bylaws of the Company is
incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on
Form SB-2 filed with the Securities and
Exchange Commission (No. 333-4704-LA,
effective June 24, 1996) --
5 Opinion re legality 24
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Price Waterhouse LLP 26
24 Power of Attorney (included in signature
pages to this registration statement) --
</TABLE>
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EXHIBIT 4.1
CERTIFICATE OF INFORMATION
TO
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MULTICOM PUBLISHING, INC.
This Certificate of Information accompanies and is submitted in
connection with the filing of Amended and Restated Articles of Incorporation of
Multicom Publishing, Inc., a Washington corporation, pursuant to RCW
23B.10.070(4).
FIRST: The name of the corporation is Multicom Publishing, Inc.
SECOND: The amendments to the Amended and Restated Articles of
Incorporation of the corporation are as follows:
(1) Article III is deleted in its entirety and replaced with
the following provisions:
ARTICLE III
AUTHORIZED CAPITAL STOCK
The aggregate number of shares which the Corporation shall have the
authority to issue is as follows:
A. Forty Million (40,000,000) shares of common stock, with a par
value of $0.01 per share ("Common Stock").
B. Three Hundred Thousand (300,000) shares of preferred stock,
with a par value of $0.01 per share ("Preferred Stock").
The transfer of any shares of this Corporation shall be subject to
restrictions, if any, contained in the corporate bylaws or any shareholder
agreement.
Unless the context requires otherwise, the term "share" and
"shareholder" shall include shares and holders of both Common Stock and
Preferred Stock.
Each share of the Corporation's Series A Common Stock and Series B
Common Stock outstanding shall, without any action on the part of the holder
thereof, be reclassified as one share of Common Stock. Pursuant to approval of
the Board of Directors and the shareholders of the Corporation, each five shares
of the
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Corporation's Series A Common Stock outstanding has previously been changed into
four shares of Series A Common Stock and each five shares of the Corporation's
Series B Common Stock outstanding has previously been changed into four shares
of Series B Common Stock.
Common Stock
Each share of Common Stock shall be entitled to one vote at
shareholders meetings.
Dividends may be paid to the holders of Common Stock in theretofore
unissued shares of authorized Common Stock or any authorized series of Preferred
Stock.
Preferred Stock
The shares of Preferred Stock may be divided into and issued in series.
The Board of Directors of the Corporation shall have the authority to establish
series; to fix and determine the variations in the relative rights and
preferences as between series; to amend the relative rights and preferences of
any series that is wholly issued; and to designate the number of shares of each
series and the designation thereof. The Board of Directors of the Corporation
may, after the issue of shares of a series, amend the resolution establishing
the series to decrease (but not below the number of shares of such series then
outstanding) the number of shares of that series, and the number of shares
constituting the decrease shall resume the status which they had before the
adoption of the resolution establishing the series.
The rights and preferences which may be established by the Board of
Directors may include, without limitation:
1 The right to vote, or limitations upon the right to vote,
and in the absence of such provision with respect to a particular series no
shares of that series shall have any right to vote, and no right to vote as a
class, for any purpose except as may be required by law;
2 The right of the Corporation to redeem any of such shares at
a price and upon terms fixed by the resolution establishing the series,
including sinking fund provisions, if any;
3 The right to receive dividends including whether any such
dividend is cumulative, noncumulative, or partially cumulative;
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4 Preference over any other class or classes of shares, or
over any other series of this or any other class or classes of shares, as to the
payment of dividends;
5 Preference in the assets of the Corporation over any other
class or classes of shares, or over any other series of this or any other class
or classes of shares, upon the voluntary or involuntary liquidation of the
Corporation;
6 The right to convert the shares into shares of any other
class or into shares of any series of the same or any other class, except a
class having prior or superior rights and preferences as to dividends or
distribution of assets upon liquidation.
(2) Article IV is deleted in its entirety and is replaced with
the following provision:
ARTICLE IV
PREEMPTIVE RIGHTS; CUMULATIVE VOTING
Shareholders of this Corporation shall not have the preemptive right to
acquire additional shares issued by the Corporation, nor shall they have the
right to cumulate votes in the election or removal of directors.
(3) Renumber Articles V through VII as Articles VII through
IX, respectively.
(5) Insert the following provisions as Articles V and VI,
respectively:
ARTICLE V
MANAGEMENT OF BUSINESS
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Certificate of
Incorporation or the Bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. Special meetings of shareholders of the Corporation may be called
only (1) by the Board of Directors pursuant to a resolution adopted by a
majority of the
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total number of authorized directors (whether or not there exist any vacancies
in previously authorized directorships at the time any such resolution is
presented to the Board for adoption) or (2) by the holders of not less than ten
percent (10%) of all of the shares entitled to cast votes at the meeting.
ARTICLE VI
NUMBER, ELECTION AND REMOVAL OF DIRECTORS
A. The number of directors shall initially be set at five (5) and,
thereafter, shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board for adoption). Subject to the rights of the holders of any series of
Preferred Stock then outstanding, vacancies in the Board of Directors may be
filled by a majority of the directors then in office, though less than a quorum.
Directors so chosen shall hold office for a term expiring at the next annual
meeting of shareholders, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any director. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, with or without cause, but only at a special
meeting of the shareholders held for that purpose, and only by the affirmative
vote of the holders of at least a majority of the voting power of capital stock
of the Corporation entitled to vote generally in the election of directors, at
which a quorum is present.
(6) Delete Articles VIII through XI.
(7) Insert the following provisions as Articles X through
XIII, respectively:
ARTICLE X
AMENDMENT OF BYLAWS
The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the
Corporation by the Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board). The
shareholders shall
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also have power to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the Corporation by the shareholders
shall require, in addition to any vote of the holders of any class or series of
stock of the Corporation required by law or by this Certificate of
Incorporation, the affirmative vote of the holders of at least a majority of the
voting power of capital stock of the Corporation entitled to vote at which a
quorum is present.
ARTICLE XI
REGISTERED OFFICE AND AGENT
A. The street address of this Corporation's registered office is 1100
Olive Way, Suite 1250, Seattle, Washington 98101.
B. Tamara L. Attard is the Corporation's registered agent at such
office.
ARTICLE XII
Notwithstanding the provisions of RCW Section 23B.10.030, Section
23B.11.030, Section 23B.12.020, and Section 23B.14.020, or any successor to
those statutes, any action on a proposal to: amend these Articles of
Incorporation; approve a plan of merger of share exchange; approve a sale, lease
or exchange of all, or substantially all, of the property of the Corporation,
other than in the usual and regular course of business; or dissolve the
Corporation, shall be approved if it receives a majority of all of the votes
entitled to be cast on the action proposed.
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ARTICLE XIII
INCORPORATORS
The names and mailing addresses of the original incorporators are:
Tamara L. Attard 2301 Fairview Ave. E.
Suite 111
Seattle, WA 98102
Roy W. Olivier 2869 Clary Hill Drive
Roswell, GA 30075
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THIRD: The amendments and the Amended and Restated Articles of
Incorporation were duly adopted by the Board of Directors by unanimous consent
on June 17, 1996 and the shareholders by unanimous consent on June 18, 1996,
pursuant to the provisions of RCW 23B.10.030 and 23B.10.040.
DATED as of this day of June, 1996.
By: _________________________________________
Tamara L. Attard, Chief Executive Officer
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EXHIBIT 4.2
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MULTICOM PUBLISHING, INC.
Pursuant to the provisions of the Washington Business Corporation Act,
RCW 23B.10.070, the following Restated Articles of Incorporation of Multicom
Publishing, Inc. are submitted for filing:
ARTICLE I
NAME
The name of this corporation is Multicom Publishing, Inc. (the
"Corporation").
ARTICLE II
PURPOSE
This Corporation is organized for the purpose of conducting any and all
business activities which a corporation may conduct under applicable law.
ARTICLE III
AUTHORIZED CAPITAL STOCK
The aggregate number of shares which the Corporation shall have the
authority to issue is as follows:
C. Forty Million (40,000,000) shares of common stock, with a par
value of $0.01 per share ("Common Stock").
D. Three Hundred Thousand (300,000) shares of preferred stock,
with a par value of $0.01 per share ("Preferred Stock").
The transfer of any shares of this Corporation shall be subject to
restrictions, if any, contained in the corporate bylaws or any shareholder
agreement.
Unless the context requires otherwise, the term "share" and
"shareholder" shall include shares and holders of both Common Stock and
Preferred Stock.
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Each share of the Corporation's Series A Common Stock and Series B
Common Stock outstanding shall, without any action on the part of the holder
thereof, be reclassified as one share of Common Stock. Pursuant to approval of
the Board of Directors and the shareholders of the Corporation, each five shares
of the Corporation's Series A Common Stock outstanding has previously been
changed into four shares of Series A Common Stock and each five shares of the
Corporation's Series B Common Stock outstanding has previously been changed into
four shares of Series B Common Stock.
Common Stock
Each share of Common Stock shall be entitled to one vote at
shareholders meetings.
Dividends may be paid to the holders of Common Stock in theretofore
unissued shares of authorized Common Stock or any authorized series of Preferred
Stock.
Preferred Stock
The shares of Preferred Stock may be divided into and issued in series.
The Board of Directors of the Corporation shall have the authority to establish
series; to fix and determine the variations in the relative rights and
preferences as between series; to amend the relative rights and preferences of
any series that is wholly issued; and to designate the number of shares of each
series and the designation thereof. The Board of Directors of the Corporation
may, after the issue of shares of a series, amend the resolution establishing
the series to decrease (but not below the number of shares of such series then
outstanding) the number of shares of that series, and the number of shares
constituting the decrease shall resume the status which they had before the
adoption of the resolution establishing the series.
The rights and preferences which may be established by the Board of
Directors may include, without limitation:
1 The right to vote, or limitations upon the right to vote,
and in the absence of such provision with respect to a particular series no
shares of that series shall have any right to vote, and no right to vote as a
class, for any purpose except as may be required by law;
2 The right of the Corporation to redeem any of such shares at
a price and upon terms fixed by the resolution establishing the series,
including sinking fund provisions, if any;
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3 The right to receive dividends including whether any such
dividend is cumulative, noncumulative, or partially cumulative;
4 Preference over any other class or classes of shares, or
over any other series of this or any other class or classes of shares, as to the
payment of dividends;
5 Preference in the assets of the Corporation over any other
class or classes of shares, or over any other series of this or any other class
or classes of shares, upon the voluntary or involuntary liquidation of the
Corporation;
6 The right to convert the shares into shares of any other
class or into shares of any series of the same or any other class, except a
class having prior or superior rights and preferences as to dividends or
distribution of assets upon liquidation.
ARTICLE IV
PREEMPTIVE RIGHTS; CUMULATIVE VOTING
Shareholders of this Corporation shall not have the preemptive right to
acquire additional shares issued by the Corporation, nor shall they have the
right to cumulate votes in the election or removal of directors.
ARTICLE V
MANAGEMENT OF BUSINESS
A. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by statute or by this Certificate of
Incorporation or the Bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. Special meetings of shareholders of the Corporation may be called
only (1) by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of authorized directors (whether or not there exist
any vacancies in previously authorized directorships at the time any such
resolution is presented to the Board for adoption) or (2) by the holders of not
less than ten percent (10%) of all of the shares entitled to cast votes at the
meeting.
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ARTICLE VI
NUMBER, ELECTION AND REMOVAL OF DIRECTORS
A. The number of directors shall initially be set at five (5) and,
thereafter, shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board for adoption). Subject to the rights of the holders of any series of
Preferred Stock then outstanding, vacancies in the Board of Directors may be
filled by a majority of the directors then in office, though less than a quorum.
Directors so chosen shall hold office for a term expiring at the next annual
meeting of shareholders, and until their respective successors are elected,
except in the case of the death, resignation, or removal of any director. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of Directors, may be
removed from office at any time, with or without cause, but only at a special
meeting of the shareholders held for that purpose, and only by the affirmative
vote of the holders of at least a majority of the voting power of capital stock
of the Corporation entitled to vote generally in the election of directors, at
which a quorum is present.
ARTICLE VII
DURATION
The duration of this Corporation shall be perpetual.
ARTICLE VIII
DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its shareholders for monetary damages for conduct as a director,
except for liability of the director for (i) acts or omissions that involve
intentional misconduct or a knowing violation of law by the director, (ii)
conduct which violates RCW 23B.08.310 of the Washington Business Corporation
Act, pertaining to unpermitted distributions to shareholders or loans to
directors, or (iii) any transaction from which the director will personally
receive a benefit in money, property or services to which the director is not
legally entitled. If the Washington Business Corporation Act is amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be
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eliminated or limited to the fullest extent permitted by the Washington Business
Corporation Act, as so amended. Any repeal or modifications of the foregoing
paragraph by the shareholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
ARTICLE IX
INDEMNIFICATION
The Corporation shall indemnify its directors against all liability,
damage, or expense resulting from the fact that such person is or was a
director, to the maximum extent and under all circumstances permitted by law;
except that the Corporation shall not indemnify a director against liability,
damage, or expense resulting from the director's gross negligence.
ARTICLE X
AMENDMENT OF BYLAWS
The Board of Directors is expressly empowered to adopt, amend or repeal
Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the
Corporation by the Board of Directors shall require the approval of a majority
of the total number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any resolution
providing for adoption, amendment or repeal is presented to the Board). The
shareholders shall also have power to adopt, amend or repeal the Bylaws of the
Corporation. Any adoption, amendment or repeal of Bylaws of the Corporation by
the shareholders shall require, in addition to any vote of the holders of any
class or series of stock of the Corporation required by law or by this
Certificate of Incorporation, the affirmative vote of the holders of at least a
majority of the voting power of capital stock of the Corporation entitled to
vote at which a quorum is present.
ARTICLE XI
REGISTERED OFFICE AND AGENT
A. The street address of this Corporation's registered office is 1100
Olive Way, Suite 1250, Seattle, Washington 98101.
B. Tamara L. Attard is the Corporation's registered agent at such
office.
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ARTICLE XII
Notwithstanding the provisions of RCW Section 23B.10.030, Section
23B.11.030, Section 23B.12.020, and Section 23B.14.020, or any successor to
those statutes, any action on a proposal to: amend these Articles of
Incorporation; approve a plan of merger of share exchange; approve a sale, lease
or exchange of all, or substantially all, of the property of the Corporation,
other than in the usual and regular course of business; or dissolve the
Corporation, shall be approved if it receives a majority of all of the votes
entitled to be cast on the action proposed.
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ARTICLE XIII
INCORPORATORS
The names and mailing addresses of the original incorporators are:
Tamara L. Attard 2301 Fairview Ave. E.
Suite 111
Seattle, WA 98102
Roy W. Olivier 2869 Clary Hill Drive
Roswell, GA 30075
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<PAGE> 8
CERTIFICATE
These Restated Articles of Incorporation contain one or more amendments
to the Corporation's Articles of Incorporation and were adopted by the
Corporation's Board of Directors on June 17, 1996 and the Corporation's
shareholders on June 18, 1996. These Restated Articles of Incorporation
supersede the original Articles of Incorporation and all amendments thereto.
IN WITNESS WHEREOF, the Corporation has caused these Restated Articles
of Incorporation to be executed on this day of June, 1996.
MULTICOM PUBLISHING, INC.
By:_____________________________
Tamara L. Attard
Chief Executive Officer
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[GRAY CARY WARE FREIDENRICH LETTERHEAD]
EXHIBIT 5
OUR FILE NO.
1130976-900000
July 16, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: MULTICOM PUBLISHING, INC.
REGISTRATION STATEMENT ON FORM S-8 REGISTERING SHARES ISSUABLE
UNDER THE AMENDED AND RESTATED 1994 STOCK OPTION PLAN, 1996
OUTSIDE DIRECTORS STOCK OPTION PLAN AND CERTAIN INDIVIDUAL
EMPLOYEE STOCK OPTION AGREEMENTS
Ladies and Gentlemen:
As legal counsel for Multicom Publishing, Inc., a Washington
corporation (the "Company"), we are rendering this opinion in connection with
the registration under the Securities Act of 1933, as amended, of up to
1,848,152 shares of the Common Stock, $.01 par value, of the Company which may
be issued pursuant to the exercise of options granted under the Multicom
Publishing, Inc. Amended and Restated 1994 Stock Option Plan and the Multicom
Publishing, Inc. 1996 Outside Directors Stock Option Plan (the "Plans") and
certain individual employee stock option agreements (the "Agreements").
We have examined all instruments, documents and records which
we deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California
and we express no opinion concerning any law other than the law of the State of
California, the corporation laws of the State of Washington and the federal law
of the United States.
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<PAGE> 2
Securities and Exchange Commission
Page 2
As to matters of Washington corporation law, we have based our
opinion solely upon our examination of such laws and the rules and regulations
of the authorities administering such laws, all as reported in standard,
unofficial compilations. We have not obtained opinions of counsel licensed to
practice in jurisdictions other than the State of California.
Based on such examination, we are of the opinion that the
1,848,152 shares of Common Stock which may be issued upon exercise of options
granted under the Plans and the Agreements are duly authorized shares of the
Company's Common Stock, and, when issued against receipt of the consideration
therefor in accordance with the provisions of the Plans and the Agreements, will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement referred to above and the use of our name wherever
it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
--------------------------------
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Multicom Publishing, Inc. of our report dated June 4,
1996 included in its Registration statement on Form SB-2 (No. 333-4704-LA)
relating to the financial statements for the year ended December 31, 1993, the
six months ended June 30, 1994, the year ended June 30, 1995 and the nine months
ended March 31, 1996.
/s/ Price Waterhouse LLP
- ------------------------
PRICE WATERHOUSE LLP
Seattle, Washington
July 15, 1996
26
