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As filed with the Securities and Exchange Commission on February 27, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FLEXIINTERNATIONAL SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1309427
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
TWO ENTERPRISE DRIVE, SHELTON, CONNECTICUT 06484
(Address of Principal Executive Offices) (Zip Code)
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
STEFAN R. BOTHE
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
FLEXIINTERNATIONAL SOFTWARE, INC.
TWO ENTERPRISE DRIVE
SHELTON, CT 06484
(Name and address of agent for service)
(203) 925-3040
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Number of Proposed maximum Proposed maximum Amount of
Title of securities Shares to offering price aggregate offering registration
to be registered be Registered per share price fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 300,000 $15.77(1) $4,731,000 $1,396
$.01 par value
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low sale prices of the
Common Stock on the Nasdaq National Market on February 24, 1998 in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933,
as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1997 Employee Stock Purchase Plan of
FlexiInternational Software, Inc., a Delaware corporation (the "Registrant"),
pursuant to Rule 428(b)(1) under the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such statements
have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the document
referred to in (a) above.
(c) The description of the common stock of the Registrant,
$.01 par value per share (the "Common Stock"), which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares offered hereby have
been sold or which deregisters all shares then remaining unsold, shall be deemed
to be incorporated in this Registration Statement by reference and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article EIGHTH of the Registrant's Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation") provides that no director
shall be personally liable to the Registrant or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except to the extent
that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breaches of fiduciary duty.
Article NINTH of the Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant) brought,
or threatened to be brought, against him by virtue of his position as, or his
agreement to become, a director or officer of the Registrant or by virtue of his
serving, or agreeing to serve, at the request of the Registrant, as a director,
officer, or trustee of, or in a similar capacity with, a corporation, trust or
other enterprise, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful and (b) shall be indemnified by the Registrant
against all expenses (including attorneys' fees) incurred and amounts paid in
settlement in connection with any action by or in the right of the Registrant
brought, or threatened to be brought, against him by virtue of his position as,
or his agreement to become, a director or officer of the Registrant or by virtue
of his serving, or agreeing to serve, at the request of the Registrant, as a
director, officer, or trustee of, or in a similar capacity with a corporation,
trust or other enterprise,
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if he acted in good faith and in a manner he reasonably believed to be in, or
not opposed to, the best interests of the Registrant, except that no
indemnification shall be made with respect to any such matter as to which such
person shall have been adjudged to be liable to the Registrant, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by
the Registrant against all expenses (including attorneys' fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer at his
request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
The Registrant is required to provide the indemnification described
herein unless the officer or director has not met the applicable standard of
conduct required for indemnification. Whether the applicable standard of conduct
has been met shall be determined in each instance by (a) a majority vote of the
directors of the Registrant consisting of persons who are not at that time
parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) a majority vote of a committee of
disinterested directors designated by majority vote of disinterested directors,
whether or not a quorum, (c) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the action, suit or proceeding in question, (d) independent
legal counsel (who may, to the extent permitted by law, be regular legal counsel
to the Registrant), or (e) a court of competent jurisdiction. In the event of a
determination that the director or officer did not meet the applicable standard
of conduct required for indemnification, or if the Registrant fails to make an
indemnification payment within 60 days after such payment is claimed by such
person, such person is permitted to petition the court to make an independent
determination as to whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director or officer
must give the Registrant notice of the action for which indemnity is sought and
the Registrant has the right to participate in such action or assume the defense
thereof.
Article NINTH of the Certificate of Incorporation further provides that
the indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Registrant must
indemnify those persons to the fullest extent permitted by such law as so
amended.
The Company has a Directors and Officers liability policy that insures
the Company's officers and directors against certain liabilities.
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Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is attached hereto
and incorporated herein by reference.
Item 9. Undertakings
1. The 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 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.
(b) 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.
(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.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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 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
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Shelton, Connecticut, on the 18th day of February, 1998.
FLEXIINTERNATIONAL SOFTWARE, INC.
By: /s/ Stefan R. Bothe
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Stefan R. Bothe
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
We, the undersigned officers and directors of FlexiInternational
Software, Inc., hereby severally constitute Stefan R. Bothe, Jennifer V. Cheng
and John K. P. Stone, III, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement on
Form S-8 filed herewith and any and all subsequent amendments to said
Registration Statement, and generally to do all such things in our names and
behalf in our capacities as officers and directors to enable FlexiInternational
Software, Inc. to comply with all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by said attorneys, or any of them, to said Registration Statement and any and
all amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Stefan R. Bothe Chairman of the Board and Chief February 18, 1998
- --------------------------- Executive Officer (Principal Executive
Stefan R. Bothe Officer)
/s/ Richard P. Horner Vice President, Finance (Principal February 18, 1998
- --------------------------- Financial and Accounting Officer)
Richard P. Horner
/s/ Thomas H. Bredt Director February 18, 1998
- ---------------------------
Thomas H. Bredt
/s/ Jennifer V. Cheng Director February 18, 1998
- ---------------------------
Jennifer V. Cheng
Director __________ , 1998
- ---------------------------
John B. Landry
/s/ A. David Tory Director February 23, 1998
- ---------------------------
A. David Tory
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4 Specimen certificate for shares of Common Stock (incorporated
by reference herein from Exhibit 4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-38403) as
declared effective by the Commission on December 11, 1997).
4.2(1) Amended and Restated By-Laws of the Registrant.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5).
23.2 Consent of Price Waterhouse LLP.
24 Power of Attorney (included on the signature page of this
Registration Statement).
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Exhibit 5
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
February 27, 1998
FlexiInternational Software, Inc.
Two Enterprise Drive
Shelton, CT 06484
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration Statement
on Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), for the registration of 300,000 shares of Common
Stock, $.01 par value per share (the "Shares"), of FlexiInternational Software,
Inc., a Delaware corporation (the "Company"), issuable under the Company's 1997
Employee Stock Purchase Plan (the "Plan").
We have examined the Certificate of Incorporation and By-Laws of the Company,
each as amended and restated to date, and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted to us as copies,
the authenticity of the originals of such latter documents and the legal
competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and the Shares, when issued and
paid for in
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FlexiInternational Software, Inc.
February 27, 1998
Page 2
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
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 or the rules and
regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
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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 our report dated October 15, 1997, except as to the
stock split described in Note 7 which is as of November 6, 1997, which appears
on page F-2 of the Registration Statement on Form S-1 of FlexiInternational
Software, Inc. We also consent to the incorporation by reference of our report
on the Financial Statement Schedule, included in the Registration Statement on
Form S-1.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Stamford, Connecticut
February 26, 1998
