<PAGE>
As filed with the Securities and Exchange Commission on June 23, 2000
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
-----------------------
GRAPHON CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3899021
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
225 Cochrane Circle
Morgan Hill, California 95037
(Address of principal executive offices) (Zip Code)
------------------------
1998 STOCK OPTION/STOCK ISSUANCE PLAN
EMPLOYEE STOCK PURCHASE PLAN
SUPPLEMENTAL STOCK OPTION PLAN
(Full title of the Plans)
-----------------------
Walter Keller
President and Chief Executive Officer
GraphOn Corporation
225 Cochrane Circle
Morgan Hill, California 95037
(Name and address of agent for service)
(408) 776-3232
(Telephone number, including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Amount to be Maximum Offering Maximum Aggregate Amount of
Title of Securities to be Registered Registered(1) Price per Share(2) Offering Price(2) Registration Fee
----------------------------------------- --------------- ---------------------- ----------------- ------------------
<S> <C> <C> <C> <C>
1998 Stock Option/Stock Issuance Plan 700,000 shares $8.53 $5,971,000 $1,576.34
-----------------------------------------
Common Stock, $0.0001 par value
Employee Stock Purchase Plan 100,000 shares $8.53 $ 853,000 $ 225.19
-----------------------------------------
Common Stock, $0.0001 par value
Supplemental Stock Option Plan 400,000 shares $8.53 $3,412,000 $ 900.77
-----------------------------------------
Common Stock, $0.0001 par value
Aggregate Registration Fee
1,200,000 shares $2,702.30
================= =========
</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Stock Option/Stock
Issuance Plan, Supplemental Stock Option Plan or the Employee Stock
Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling prices per share of Registrant's Common Stock on June
19, 2000, as reported by the Nasdaq Small Cap Market.
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
GraphOn Corporation (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K filed with the
Commission on March 30, 2000 for the fiscal year ending December
31, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q filed with the
Commission on May 15, 2000 for the period ending March 31, 2000;
(c) The Registrant's Current Report on Form 8-K filed with the
Commission on April 6, 2000; and
(d) The Registrant's Registration Statement No. 000-21683 on Form 8-
A12G filed with the Commission on November 6, 1996, pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), in which are described the terms, rights and
provisions applicable to the Registrant's outstanding Common
Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers
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Subsection (a) of Section 145 of the General Corporation Law of
the State of Delaware empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding 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 corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
1
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Subsection (b) of Section 145 empowers a corporation to indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by right of the corporation to
procure a judgment in its favor by reason of the fact that such person acted in
any of the capacities set forth above, against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit 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
corporation, except that no indemnification may be made in respect to any claim
issue or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or
officer of a corporation has been successful on the merits or otherwise in the
defense of any such action, suit or proceeding referred to in subsections (a)
and (b) of Section 145 or in the defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection therewith; that the indemnification
provided for by Section 145 shall not be deemed exclusive of any other rights
which the indemnified party may be entitled; that indemnification provided by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and empowers the corporation to purchase and maintain insurance
on behalf of a director or officer of the corporation against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation would have the power to
indemnify him against such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of the director (i) for any breach of the director's duty of loyalty
to the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article VIII of the Registrant's Charter provides that, to the
fullest extent permitted by the Delaware General Corporation Law as the same
exists or as it may hereafter be amended, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director.
Article VII, Section 6 of the Registrant's Bylaws further
provides that the Registrant shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware, indemnify each of its
directors and officers against expenses (including attorneys' fees), judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such person
is or was an agent of the Registrant.
The Registrant has entered into indemnification agreements with
each of its directors and officers.
The Registrant maintains $10,000,000 of officers' and directors'
liability insurance.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
2
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Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-21683 on
Form 8-A12G, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(d) to
this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of BDO Seidman, LLP, Independent Certified Public
Accountants
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1998 Stock Option/Stock Issuance Plan.
99.2 Employee Stock Purchase Plan.
99.3 Supplemental Stock Option Plan.
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 1933 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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (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 Registrant's 1998
Stock Option/Stock Issuance Plan, Supplemental Stock Option Plan and Employee
Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into 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.
C. Insofar as indemnification for liabilities arising under
the 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8, and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Morgan Hill, State of California on
this 23rd day of June, 2000.
GRAPHON CORPORATION
By: /s/ Walter Keller
---------------------------------
Walter Keller
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of GraphOn Corporation, a
Delaware corporation, do hereby constitute and appoint Walter Keller and William
Swain, and each of them, the lawful attorneys-in-fact and agents with full power
and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both pre-
effective and post-effective, and supplements to this Registration Statement,
and to any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms that all said attorneys and
agents, or any one of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------------------------------- -------------------------------------- ----------------------------
<S> <C> <C>
/s/ Walter Keller President, Chief Executive Officer and June 23, 2000
------------------------------------ Director (Principal Executive Officer)
Walter Keller
/s/ William Swain Chief Financial Officer and Secretary June 23, 2000
------------------------------------ (Principal Financial and Accounting Officer)
William Swain
/s/ Robert Dilworth Chairman of the Board June 23, 2000
------------------------------------
Robert Dilworth
</TABLE>
4
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<TABLE>
<CAPTION>
Signature Title Date
----------------------------------- -------------------------------------- ----------------------------
<S> <C> <C>
/s/ Robin Ford Executive Vice President, Marketing and June 23, 2000
------------------------------------ Sales and Director
Robin Ford
/s/ August P. Klein Director June 23, 2000
------------------------------------
August P. Klein
/s/ Marshall C. Phelps, Jr. Director June 23, 2000
------------------------------------
Marshall C. Phelps, Jr.
</TABLE>
5
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EXHIBIT INDEX
Exhibit Number Exhibit
-------------- -------
4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statement No. 000-21683
on Form 8-A12G, together with any exhibits thereto, which
are incorporated herein by reference pursuant to Item 3(d)
to this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of BDO Seidman, LLP, Independent Certified Public
Accountants
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1998 Stock Option/Stock Issuance Plan.
99.2 Employee Stock Purchase Plan.
99.3 Supplemental Stock Option Plan.
