<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 11, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NEWGEN RESULTS CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware 33-0604378
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
12680 High Bluff Drive, Suite 300
San Diego, California 92130
(619) 481-7545
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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1996 EQUITY INCENTIVE PLAN
1998 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
OPTIONS GRANTED OUTSIDE ANY PLAN
(Full title of the plans)
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Gerald L. Benowitz
President and Chief Executive Officer
NEWGEN RESULTS CORPORATION
12680 High Bluff Drive, Suite 300
San Diego, California 92130
(619) 481-7545
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
------------------
Copies to:
M. Wainwright Fishburn, Esq.
Lance W. Bridges, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
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<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 2,218,920 .50 - $13.00 $18,229,666.25 $5,067.85
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares
subject to outstanding stock options previously granted under the
Registrant's 1996 Equity Incentive Plan, 1998 Equity Incentive Plan and
Non-Employee Directors' Stock Option Plan and (b) the average of the high and
low sales prices of Registrant's Common Stock on June 10, 1999, as reported
on the Nasdaq National Market, for shares issuable under the Company's
Employee Stock Purchase Plan, 1996 Equity Incentive Plan, 1998 Equity
Incentive Plan and Non-Employee Directors' Stock Option Plan. The following
chart shows the calculation of the registration fee.
<TABLE>
<CAPTION>
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Type of Shares Number of Offering Price Aggregate
Shares Per Share Offering Price
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<S> <C> <C> <C>
Common Stock issuable pursuant to 34,500 $.50 $17,250.00
outstanding options under the 1996
Equity Incentive Plan
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Common Stock issuable pursuant to 65,650 $.75 $49,237.50
outstanding options under the 1996
Equity Incentive Plan
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Common Stock issuable pursuant to 6,250 $2.50 $15,625.00
outstanding options under the 1996
Equity Incentive Plan
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Common Stock issuable pursuant to 18,750 $6.50 $121,875.00
outstanding options under the 1996
Equity Incentive Plan
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Common Stock issuable pursuant to 347,050 $.90 $312,345.00
outstanding options under the 1996
Equity Incentive Plan
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Common Stock issuable under the 1996 66,250 $12.625 $836,406.25
Stock Plan
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Common Stock issuable pursuant to 326,570 $4.50 $1,469,565.00
outstanding options under the 1998
Equity Incentive Plan
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Common Stock issuable pursuant to 27,900 $5.25 $146,475.00
outstanding options under the 1998
Equity Incentive Plan
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Common Stock issuable pursuant to 204,700 $9.25 $1,893,475.00
outstanding options under the 1998
Equity Incentive Plan
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Common Stock issuable under the 1998 539,300 $12.625 $6,808,662.50
Equity Incentive Plan
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Common Stock issuable pursuant to 80,000 $2.50 $200,000.00
outstanding options issued under no
plan
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Common Stock issuable pursuant to 2,000 $13.00 $26,000.00
outstanding options issued under no
plan
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Common Stock issuable pursuant to 54,000 $13.00 $702,000.00
outstanding options under the Non-
Employee Directors' Stock Option Plan
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Common Stock issuable under the Non- 96,000 $12.625 $1,212,000.00
Employee Directors' Stock Option Plan
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Common Stock issuable under the 350,000 $12.625 $4,418,750.00
Employee Stock Purchase Plan
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</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The prospectus contained in the Form S-1 Registration Statement (No.
333-23407) filed by Newgen Results Corporation (the "Registrant") with the
Securities and Exchange Commission (the "Commission") on September 2, 1998,
as amended through the date hereof (the "Form S-1"), is hereby incorporated
by reference into this Registration Statement. The Registrant has not filed,
and has not been required to file, any reports pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as of the date hereof. A description of the Registrant's Common Stock
which is contained in the Form S-1, including any amendment or reports filed
for the purpose of updating such description, is hereby incorporated by
reference into this Registration Statement. All documents filed by the
Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters 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 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
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.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Cooley Godward LLP, San Diego, California. As of the
date of this Prospectus, certain members and associates of Cooley Godward own an
aggregate of 5,530 shares of Common Stock through an investment partnership.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the Delaware
Law) , the Registrant has broad powers to indemnify its Directors and officers
against liabilities they may incur in such capacities, including liabilities
under the Securities Act of 1933, as amended (the "Securities Act").
1
<PAGE>
The Registrant's Certificate of Incorporation and Bylaws include provisions
to (i) eliminate the personal liability of its Directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the Delaware Law and (ii) require the Registrant to
indemnify its Directors and officers to the fullest extent permitted by Section
145 of the Delaware Law, including circumstances in which indemnification is
otherwise discretionary. Pursuant to Section 145 of the Delaware Law, a
corporation generally has the power to indemnify its present and former
Directors, officers, employees and agents against expenses incurred by them in
connection with any suit to which they are or are threatened to be made a party
by reason of their serving in such positions so long as they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action, they had
no reasonable cause to believe their conduct was unlawful. The Registrant
believes that these provisions are necessary to attract and retain qualified
persons as Directors and officers. These provisions do not eliminate the
Directors' duty of care, and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware Law. In addition, each Director will continue to be subject to
liability for breach of the Director's duty of loyalty to the Registrant, for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for acts or omissions that the Director believes to
be contrary to the best interests of the Registrant or its stockholders, for any
transaction from which the Director derived an improper personal benefit, for
acts or omissions involving a reckless disregard for the Director's duty to the
Registrant or its stockholders when the Director was aware or should have been
aware of a risk of serious injury to the Registrant or its stockholders, 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
stockholders, for improper transactions between the Director and the Registrant
and for improper distributions to stockholders and loans to Directors and
officers. The provision also does not affect a Director's responsibilities under
any other law, such as the federal securities law or state or federal
environmental laws.
The Registrant has entered into indemnity agreements with each of its
Directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a Director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, had no reasonable cause
to believe his or her conduct was unlawful. The indemnification agreements also
set forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and Directors
of the Registrant with respect to certain liabilities, including liabilities
arising under the Securities Act or otherwise.
2.
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description.
- ----------- ------------
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 6.
* 99.1 1996 Equity Incentive Plan (the "1996 Plan").
* 99.2 Form of Stock Option Agreement pursuant to the 1996 Plan.
* 99.3 1998 Equity Incentive Plan (the "1998 Plan").
* 99.4 Form of Stock Option Agreement pursuant to the 1998 Plan.
* 99.5 1998 Non-Employee Directors' Stock Option Plan.
* 99.6 1998 Employee Stock Purchase Plan.
</TABLE>
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* Filed as an exhibit to Registration Statement on Form S-1 (No. 333-62703)
originally filed on September 2, 1998, as amended through the date hereof,
and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
1. The undersigned 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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
Registration Statement;
3.
<PAGE>
(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)(a)(i) and (1)(a)(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 Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1934, 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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act of 1934 (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act of
1934) 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 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, 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.
4.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San Diego,
County of San Diego, State of California, on June 11, 1999.
By: /s/ Gerald L. Benowitz
-----------------------------------
Gerald L. Benowitz
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gerald L. Benowitz and Samuel Simkin and
each of them, as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place, and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments, exhibits thereto and other documents in connection
therewith) to this Registration Statement and any subsequent registration
statement filed by the registrant pursuant to Rule 462(b) of the Securities Act
of 1933, as amended, which relates to this Registration Statement, and to file
the same, with all exhibits thereto, and other 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
connection therewith, 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 their or his substitute or substitutes, may
lawfully 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 and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------- ---------------------------------- -------------
<S> <C> <C>
/s/ Gerlad L. Benowitz
- ---------------------------------- President, Chief Executive Officer June 11, 1999
Gerald L. Benowitz and Director
/s/ Sameul Simkin
- ---------------------------------- Chief Financial Officer, Vice June 11, 1999
Samuel Simkin President and Secretary
/s/ Eugene Fischer
- ---------------------------------- Director June 11, 1999
Eugene Fischer
/s/ H. Robert Gill
- ---------------------------------- Director June 11, 1999
H. Robert Gill
/s/ Jess Marzak
- ---------------------------------- Director June 11, 1999
Jess Marzak
/s/ John Moragne
- ---------------------------------- Director June 10, 1999
John Moragne
/s/ Abraham Simkin
- ---------------------------------- Director June 11, 1999
Abraham Simkin
- ---------------------------------- Director June , 1999
Bernard C. Simkin
/s/ Gary Simkin
- ---------------------------------- Director June 11, 1999
Gary Simkin
/s/ Todd A. Springer
- ---------------------------------- Director June 11, 1999
Todd A. Springer
- ---------------------------------- Director June , 1999
Bert Winemiller
</TABLE>
5.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NO. DESCRIPTION PAGE NO.
- -------- ----------- ----------
<S> <C> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public
Accountants.
23.2 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 5.
* 99.1 1996 Equity Incentive Plan (the "1996 Plan").
* 99.2 Form of Stock Option Agreement pursuant to the 1996 Plan.
* 99.3 1998 Equity Incentive Plan (the "1998 Plan").
* 99.4 Form of Stock Option Agreement pursuant to the 1998 Plan.
* 99.5 1998 Non-Employee Directors' Stock Option Plan.
* 99.6 1998 Employee Stock Purchase Plan.
</TABLE>
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* Filed as an exhibit to Registration Statement on Form S-1 (No. 333-62703)
originally filed on Septebmer 2, 1998, as amended through the date hereof,
and incorporated herein by reference.
7.
<PAGE>
EXHIBIT 5.1
OPINION OF COOLEY GODWARD LLP
[LETTERHEAD]
June 11, 1999
Newgen Results Corporation
12680 High Bluff Drive
San Diego, California 92130
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Newgen Results Corporation (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission, covering the registration of up to 2,218,920 shares of the
Company's Common Stock, $.001 par value (the "Shares"), for issuance (i)
pursuant to the Company's Employee Stock Purchase Plan, 1996 Equity Incentive
Plan, 1998 Equity Incentive Plan and Non-Employee Directors' Stock Option Plan
(collectively, the "Plans"), and (ii) upon the exercise of outstanding options
granted under the Company's 1996 Equity Incentive Plan, 1998 Equity Incentive
Plan, Non-Employee Directors' Stock Option Plan and upon the exercise of options
granted outside of the Plans (collectively the "Options").
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Plans, the Company's Restated Certificate of
Incorporation and Amended and Restated Bylaws and the originals or copies
certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement and the Options, will be validly issued, fully paid, and
nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
/s/ Lance W. Bridges
- -------------------------
Lance W. Bridges
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
(and to all references to our Firm) included in or made part of this
Registration Statement.
/s/ Arthur Andersen LLP
--------------------------
Arthur Andersen LLP
San Diego, California
June 11, 1999
