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As filed with the Securities and Exchange Commission on September 20, 1996
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TECHNOLOGY MODELING ASSOCIATES, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 94-2708698
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
595 LAWRENCE EXPRESSWAY
SUNNYVALE, CALIFORNIA 94086
(Address of principal executive offices, including zip code)
1989 STOCK OPTION PLAN
1995 STOCK OPTION PLAN
1996 EQUITY INCENTIVE PLAN
1996 DIRECTORS STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
BENNET L. WEINTRAUB
CHIEF FINANCIAL OFFICER
595 LAWRENCE EXPRESSWAY
SUNNYVALE, CALIFORNIA 94086
(408) 328-0930
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
Robert A. Freedman, Esq.
Trudy A. Golobic, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED
AMOUNT PROPOSED MAXIMUM
TO BE MAXIMUM OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value. . . . . . 1,850,000(1) $12.00(2) $ 22,200,000.00(2) $ 7,656(2)
Common Stock, no par value. . . . . . 924,750(3) 2.035(4) 1,882,274.05(4) 650(4)
--------- ---------------- --------
Total . . . . . . . . . . . 2,774,750 $ 24,082,274.05 $ 8,306
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</TABLE>
(1) Shares available for grant and not yet subject to outstanding options as of
September 19, 1996 under the 1996 Equity Incentive Plan (the "1996 PLAN")
and the 1996 Directors Stock Option Plan (the "DIRECTORS PLAN") and
available for issuance as of September 19, 1996 under the 1996 Employee
Stock Purchase Plan (the "PURCHASE PLAN").
(2) Estimated as of September 19, 1996 pursuant to Rule 457(c) under the
Securities Act of 1933, as amended, solely for the purpose of calculating
the registration fee.
(3) Shares subject to options outstanding as of September 19, 1996 under the
1989 Stock Option Plan (the "1989 PLAN") and the 1995 Stock Option Plan
(the "1995 PLAN").
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1) under the Securities Act.
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TECHNOLOGY MODELING ASSOCIATES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Prospectus filed with the Commission on
September 20, 1996 under the Securities Act of 1933, as amended
(the "Securities Act") pursuant to Rule 424(b), which prospectus
contains audited financial statements for the fiscal year ended
December 31, 1995.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on July 19,
1996 with the Commission under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
declared effective by the Commission on September 19, 1996, and
any amendment or report subsequently 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 securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation include a provision that
eliminates to the fullest extent permitted by law the personal liability of its
directors to the Registrant and its shareholders for monetary damages for breach
of the directors' fiduciary duties. This limitation has no effect on a
director's liability (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a director believes to be contrary to the best interests of the
Registrant or its shareholders or that involve the absence of good faith on the
part of the director, (iii) for any transaction from which a director derived an
improper personal benefit, (iv) for acts or omissions that show a reckless
disregard for the director's duty to the Registrant or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of a serious injury
to the Registrant or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the director's duty to the Registrant or its shareholders, (vi) under Section
310 of the California Corporations Code (the "California Code") (concerning
contracts or transactions between the Registrant and a director) or (vii) under
Section 316 of the California Code (concerning directors' liability for improper
dividends, loans and guarantees). The provision does not extend to acts or
omissions of a director in his capacity as an officer. Further, the provision
will not affect the availability of injunctions and other equitable remedies
available to the Registrant's shareholders for any violation of a director's
fiduciary duty to the Registrant or its shareholders.
The Registrant's Articles of Incorporation further provide that the
Registrant will indemnify its directors and executive officers to the fullest
extent permitted under Section 317 of the California Code and include an
authorization for the Registrant to indemnify its agents (as defined in Section
317 of the California Code), through bylaw provisions, by agreement or
otherwise, to the fullest extent permitted by law. Pursuant to these
provisions, the Registrant's Bylaws provide for indemnification of the
Registrant's directors and officers. In addition, the Registrant, at its
discretion, may provide indemnification to persons whom the Registrant is not
obligated to indemnify. The
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Registrant has entered into indemnity agreements with all directors and
executive officers, which provide the maximum indemnification permitted by law.
These agreements, together with the Registrant's Bylaws and Articles of
Incorporation, may require the Registrant, among other things, to indemnify
these directors and executive officers against certain liabilities that may
arise by reason of their status or service as directors and executive officers
(other than liabilities resulting from willful misconduct of a culpable nature),
to advance expenses to them as they are incurred, provided that they undertake
to repay the amount advanced if it is ultimately determined by a court that they
are not entitled to indemnification, and to obtain directors' and officers'
insurance if available on reasonable terms. Section 317 of the California Code
and the Registrant's Bylaws make provision for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act. At
present, there is no pending litigation or proceeding involving a director,
officer or employee of the Company pursuant to which indemnification is sought,
nor is the Company aware of any threatened litigation that may result in claims
for indemnification.
The Registrant currently maintains directors and officers liability
insurance and intends to increase the amount of coverage to a per claim and
annual aggregate coverage limit of $5,000,000.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.01 Registrant's Amended and Restated Articles of
Incorporation, (incorporated herein by reference to Exhibit
3.01 of Registrant's Registration Statement on Form SB-2,
File No. 333-5252-LA, initially filed on July 10, 1996, and
as subsequently amended through September 9, 1996 (the
"Form SB-2")).
4.02 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.02 of the Form SB-2).
4.03 Registrant's 1989 Stock Option Plan (incorporated herein by
reference to Exhibit 10.01 of the Form SB-2).
4.04 Registrant's 1995 Stock Option Plan (incorporated herein by
reference to Exhibit 10.03 of the Form SB-2).
4.05 Registrant's 1996 Equity Incentive Plan (incorporated
herein by reference to Exhibit 10.04 of the Form SB-2).
4.06 Registrant's 1996 Directors Stock Option Plan (incorporated
herein by reference to Exhibit 10.05 of the Form SB-2).
4.07 Registrant's 1996 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.06 of the
Form SB-2).
4.08 Form of Specimen Certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of the
Form SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Arthur Andersen LLP, independent accountants.
24.01 Power of Attorney (see page II-5).
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ITEM 9. UNDERTAKINGS.
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 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; and
(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 (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 with or furnished to
the Commission 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, 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.
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.
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 provisions discussed in Item 6 hereof, 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.
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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 Sunnyvale, State of California, on the 19th day of
September, 1996.
TECHNOLOGY MODELING ASSOCIATES
By: /s/ Bennet L. Weintraub
-------------------------
Bennet L. Weintraub
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Roy E. Jewell and Bennet L. Weintraub,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, 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 on Form S-8, and to file the same with all
exhibits thereto and all 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 and about the premises, 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 his or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
SIGNATURE TITLE DATE
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
/S/ Roy E. Jewell President, Chief Executive September 19, 1996
- ------------------------- Officer, Chairman of the
Roy E. Jewell Board of Directors
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/S/ Bennet L. Weintraub Chief Financial Officer September 19, 1996
- -------------------------
Bennet L. Weintraub
ADDITIONAL DIRECTORS:
/S/ Louis A. Delmonico Director September 19, 1996
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Louis A. Delmonico
/S/ William E. Drobish Director September 19, 1996
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William E. Drobish
/S/ Robert W. Dutton Director September 19, 1996
- -------------------------
Robert W. Dutton
/S/ Yoshio Nishi Director September 19, 1996
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Yoshio Nishi
/S/ Ronald A. Rohrer Director September 19, 1996
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Ronald A. Rohrer
<PAGE>
EXHIBIT 5.01
September 19, 1996
Technology Modeling Associates, Inc.
595 Lawrence Expressway
Sunnyvale, CA 94086
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "REGISTRATION STATEMENT") to be filed by you with the Securities and
Exchange Commission on or about September 20, 1996 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
2,774,750 shares of your Common Stock (the "PLAN STOCK") subject to issuance by
you upon the exercise of (a) stock options granted by you under your 1989 Stock
Option Plan (the "1989 PLAN") (b) stock options granted by you under your 1995
Stock Option Plan, as amended (the "1995 PLAN"), (c) stock options to be granted
by you under your 1996 Equity Incentive Plan (the "1996 PLAN"), (d) stock
options to be granted by you under your 1996 Directors Stock Option Plan (the
"DIRECTORS PLAN") and/or (e) purchase rights to be granted under your 1996
Employee Stock Purchase Plan, as amended (the "PURCHASE PLAN").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form SB-2 (File Number 333-5252-LA)
filed with and declared effective by the Securities and Exchange
Commission on September 19, 1996, together with the Exhibits filed as
a part thereof;
(2) the Registration Statement, together with the Exhibits filed as a part
thereof, including, without limitation, the 1989 Plan, the 1995 Plan,
the 1996 Plan, the Directors Plan, the Purchase Plan and related
documents;
(3) the minutes of meetings and actions by written consent of the
shareholders and Board of Directors that are contained in your minute
book, that are in our possession; and
(4) the stock record books you have provided to us, including records of
the capital stock, stock options and warrants you have issued.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed terminations, modifications, waivers or
amendments to any documents reviewed by us and the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information included in the documents referred
to above. We have made no independent investigations or other attempts to
verify the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; HOWEVER, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
Based upon the foregoing, it is our opinion that the Plan Stock that may be
issued and sold by you upon the exercise of (a) stock options granted under the
1989 Plan, (b) stock options granted under the 1995 Plan, (c) stock options to
be granted under the 1996 Plan, (d) stock options to be granted under the
Directors Plan and (e) purchase rights to be granted under the Purchase Plan,
when issued and sold in accordance with the applicable plan and stock options or
purchase rights granted thereunder, and in the manner referred to in the
relevant Prospectus associated with the Registration Statement, will be legally
issued, fully paid and nonassessable.
<PAGE>
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for your use
as an exhibit to the Registration Statement for the purpose of the above sale of
the Plan Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
<PAGE>
EXHIBIT 23.02
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report (dated July
9, 1996 included in Technology Modeling Associates, Inc. Form SB-2
Registration Statement File No. 333-5252-LA).
ARTHUR ANDERSEN LLP
San Jose, California
September 19, 1996
