As filed with the Securities and Exchange Commission on June 25, 1998
Registration No. 333-____
================================================================================
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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MOBIUS MANAGEMENT SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3078745
-------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
120 OLD POST ROAD
RYE, NEW YORK 10580
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(Address of Principal Executive Offices)
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MOBIUS MANAGEMENT SYSTEMS, INC.
1996 STOCK INCENTIVE PLAN
MOBIUS MANAGEMENT SYSTEMS, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
MOBIUS MANAGEMENT SYSTEMS, INC.
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plans)
MITCHELL GROSS
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
MOBIUS MANAGEMENT SYSTEMS, INC.
120 OLD POST ROAD
RYE, NEW YORK 10580
(Name and Address of Agent for Service)
(914) 921-7200
(Telephone Number, Including Area Code,
of Agent for Service)
COPIES TO:
Kenneth P. Kopelman, Esq.
Kramer, Levin, Naftalis & Frankel
919 Third Avenue
New York, New York 10022
(212) 715-9100
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Offering Aggregate Amount of
Securities to Amount to be Price Per Offering Registration
be Registered Registered(1) Share(2) Price Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common 3,835,500 $11.875 $45,546,563 $13,436
Stock (par shares
value $0.0001
per share)
===================================================================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1998 Mobius Management Systems, Inc. Employee Stock Purchase Plan.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) of the Securities Act of 1933, as amended, based upon the
average of the high and low sales prices for the Common Stock reported on
the Nasdaq National Market on June 24, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference in this Registration
Statement the following documents:
(a) The Registrant's Registration Statement No. 333-47117 on Form S-1,
as amended;
(b) The Registrant's Prospectus filed with the Securities and Exchange
Commission (the "Commission") on April 28, 1998 pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act") in connection with the
above referenced Registration Statement on Form S-1, in which there is set forth
the audited financial statements of the Registrant which present the
Registrant's financial position as of June 30, 1997 and December 31, 1997 and
the Registrant's results of operations and cash flows for the fiscal year ended
June 30, 1997 and for the six month period ended December 31, 1997, as
supplemented by Prospectus Supplement No.1 filed with the Commission pursuant to
rule 424(b) on May 13, 1998;
(c) The Registrant's Registration Statement on Form 8-A (File No.
000-24077), filed with the Commission on April 23, 1998, which incorporates a
description of the Common Stock, including any amendment or report filed for the
purpose of updating such description; and
(d) 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 registrant document
referred to in (b) above.
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 to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement on Form S-8 and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The legality of the issuance of the shares has been passed upon for the
Registrant by Kramer, Levin, Naftalis & Frankel ("Kramer Levin"). Kenneth P.
Kopelman, a partner at Kramer Levin, is a member of Registrant's board of
directors and owns options to purchase 10,000 shares of Common Stock. In
addition, Mr. Kopelman may be deemed to be the beneficial owner of 1,500 shares
of Common Stock owned by his minor children.
Item 6. Indemnification of Directors and Officers.
Article EIGHTH of the Registrant's Second Amended and Restated
Certificate of Incorporation (the "Restated Certificate of Incorporation")
provides that no director of the Registrant shall be personally liable for any
monetary damages for any breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
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 any improper personal benefit.
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<PAGE>
Article NINTH of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall to the fullest extent permitted by Delaware
law, as in effect from time to time, indemnify each director or officer of the
Registrant or of any of its wholly-owned subsidiaries who was or is a party or
is threatened to be made a party to any litigation or other legal proceeding, by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Registrant or of any of its subsidiaries (provided that such
person's actions subject to such proceeding were taken in good faith and in a
manner he or she 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) against all
expense, liability and loss (including, but not limited to, attorneys' fees,
judgments, fines, excise taxes or penalties with respect to any employee benefit
plan or otherwise, and amounts paid or to be paid in settlement) incurred or
suffered by such director or officer in connection with such proceeding;
provided, however, that, except for proceedings to recover claims made by a
director or officer against the Registrant pursuant to such Article NINTH, the
Registrant shall not be obligated to indemnify a director or officer in
connection with a proceeding not authorized by the Board of Directors of the
Registrant and initiated by such director or officer against (i) the Registrant
or any of its subsidiaries, (ii) any person who is or was a director, officer,
employee or agent of the Registrant or any of its subsidiaries and/or (iii) any
person or entity which is or was controlled, controlled by, or under common
control with the Registrant or has or had business relations with the Registrant
or any of its subsidiaries.
The right to indemnification conferred by such Article NINTH includes
the right to be paid by the Registrant the expenses incurred in connection with
the defense or investigation of any such proceeding in advance of its final
disposition; provided, however, that if and to the extent that Delaware law so
requires, the payment of such expense in advance of the final disposition of a
proceeding shall be made only upon delivery to the Registrant of an undertaking,
by or on behalf of such director or officer or former director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer or former director or officer is not entitled to be
indemnified by the Registrant.
Article NINTH of the Registrant's Restated 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.
Section 145 of the Delaware General Corporation Law 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 by 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.
The Company has obtained directors and officers liability insurance for
the benefit of its directors and certain of its officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE>
Item 8. Exhibits.
Exhibit Number Description
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4.1 Second Amended and Restated Certificate of
Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1 to
the Registrant's Amendment No. 2 to the
Registration Statement No. 333-47117 on Form
S-1 (the "Registration Statement"), filed
with the Commission on April 2, 1998).
4.2 Amended and Restated By-laws of the
Registrant (incorporated by reference to
Exhibit 3.2 to Amendment No. 2 to the
Registration Statement, filed with the
Commission on April 2, 1998).
5 Opinion of Kramer, Levin, Naftalis &
Frankel.
10.1 Mobius Management Systems, Inc. 1996 Stock
Incentive Plan, together with the amendment
thereto (incorporated by reference to
Exhibit 10.1 to the Registration Statement,
filed with the Commission on February 27,
1998 and to Exhibit 10.2 to Amendment No. 1
to the Registration Statement, filed with
the Commission on March 11, 1998).
10.2 Mobius Management Systems, Inc. 1998
Employee Stock Purchase Plan (incorporated
by reference to Exhibit 10.3 to Amendment
No. 1 to the Registration Statement, filed
with the Commission on March 11, 1998).
10.3 Mobius Management Systems, Inc. 1998
Non-Employee Director Stock Option Plan
(incorporated by reference to Exhibit 10.4
to Amendment No. 1 to the Registration
Statement, filed with the Commission on
March 11, 1998).
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Kramer, Levin, Naftalis & Frankel
(included in Exhibit 5 above).
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 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.
(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 the time shall be deemed to be the initial bona
fide offering thereof.
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<PAGE>
(3) To remove from registration by means of 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 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 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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<PAGE>
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 New York, State of New York, on this 24th day of
June, 1998.
MOBIUS MANAGEMENT SYSTEMS, INC.
By:/s/ Mitchell Gross
----------------------------
Name: Mitchell Gross
Title: Chairman of the Board, Chief
Executive Officer and President
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Mobius Management Systems, Inc.,
hereby severally constitute and appoint Mitchell Gross and Joseph J. Albracht
and each of them singly, our true and lawful attorneys, with full power to them
and each of them singly, to sign for us in our names in the capacities indicated
below, all pre-effective and post-effective amendments to this registration
statement and any other registration statement (and any amendment thereto) filed
with the Securities and Exchange Commission with respect to the Plans listed on
the face of this registration statement and generally do all things in our names
and on our behalf in such capacities to enable Mobius Management Systems, Inc.
to comply with the provisions of the Securities Act of 1993, as amended and all
requirements of the Securities and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons on June 25, 1998 in the
capacities indicated.
Signature Title(s)
- --------- --------
/s/ MITCHELL GROSS Chairman of the Board, Chief Executive Officer,
- ------------------------- President (Principal Executive Officer) and
Mitchell Gross Director
/s/ JOSEPH J. ALBRACHT Executive Vice President, Chief Operating Officer,
- ------------------------- Secretary and Director
Joseph J. Albracht
/s/ E. KEVIN DAHILL Vice President, Chief Financial Officer and
- ------------------------- Treasurer
E. Kevin Dahill (Principal Financial and Accounting Officer)
/s/ PETER J. BARRIS Director
- -------------------------
Peter J. Barris
/s/ EDWARD F. GLASSEMEYER Director
- -------------------------
Edward F. Glassemeyer
/s/ KENNETH P. KOPELMAN Director
- -------------------------
Kenneth P. Kopelman
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the trustees have
duly caused this registration statement to be signed on its behalf by the
following person on June 25, 1998, in the capacity indicated.
/s/ Mobius Management Systems, Inc.
1998 Employee Stock Purchase Plan
- -----------------------------------
Mobius Management Systems, Inc
1998 Employee Stock Purchase Plan
BY: /s/ E. Kevin Dahill
------------------------------
E. Kevin Dahill
Chief Financial Officer and
Authorized Signatory
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
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4.1 Second Amended and Restated Certificate
of Incorporation of the Registrant, as
amended (incorporated by reference to
Exhibit 3.1 to the Registrant's Amendment
No. 2 to the Registration Statement No.
333-47117 on Form S-1 (the "Registration
Statement"), filed with the Commission on
April 2, 1998).
4.2 Amended and Restated By-laws of the
Registrant (incorporated by reference to
Exhibit 3.2 to Amendment No. 2 to the
Registration Statement, filed with the
Commission on April 2, 1998).
5 Opinion of Kramer, Levin, Naftalis &
Frankel.
10.1 Mobius Management Systems, Inc. 1996
Stock Incentive Plan, together with the
amendment thereto (incorporated by
reference to Exhibit 10.1 to the
Registration Statement, filed with the
Commission on February 27, 1998 and to
Exhibit 10.2 to Amendment No. 1 to the
Registration Statement, filed with the
Commission on March 11, 1998).
10.2 Mobius Management Systems, Inc. 1998
Employee Stock Purchase Plan
(incorporated by reference to Exhibit
10.3 to Amendment No. 1 to the
Registration Statement, filed with the
Commission on March 11, 1998).
10.3 Mobius Management Systems, Inc. 1998
Non-Employee Director Stock Option Plan
(incorporated by reference to Exhibit
10.4 to Amendment No. 1 to the
Registration Statement, filed with the
Commission on March 11, 1998).
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Kramer, Levin, Naftalis &
Frankel (included in Exhibit 5 above).
EXHIBIT 5
[LETTERHEAD OF KRAMER, LEVIN, NAFTALIS & FRANKEL]
June 25, 1998
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Mobius Management Systems, Inc., a Delaware
corporation (the "Registrant"), in connection with the preparation and filing of
a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission (the "Commission"), with respect to the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 3,836,000 shares (the "Shares") of common stock, par value $0.0001
per share (the "Common Stock"), to be issued pursuant to the Registrant's 1996
Stock Incentive Plan, 1998 Employee Stock Purchase Plan, and the 1998
Non-Employee Director Stock Option Plan (collectively, the "Plans").
In connection with the registration of the Shares, we have reviewed
copies of the Registration Statement, the Plans, the Second Amended and Restated
Certificate of Incorporation and the Amended and Restated By-laws of the
Registrant, and such other documents and records as we have deemed necessary to
enable us to express an opinion on the matters covered hereby.
<PAGE>
Securities and Exchange Commission
June 25, 1998
Page Two
We have also examined and relied upon representations, statements, or
certificates of public officials and officers and representatives of the
Registrant.
Based upon the foregoing, we are of the opinion that the Shares covered
by the Registration Statement have been duly authorized and, upon thereof and
payment therefor in accordance with the terms stated in the applicable Plans,
will be validly issued, fully paid and non-assessable.
Kenneth P. Kopelman, a partner at this firm, is a member of the
Registrant's board of directors and owns options to purchase 10,000 shares of
Common Stock. In addition, Mr. Kopelman may be deemed to be the beneficial owner
of 1,500 shares of the Registrant's Common Stock owned by his minor children.
Such information is also disclosed in Item 5 of Part II of the Registration
Statement.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Commission thereunder.
We are delivering this opinion to the Registrant, and no person other
than the Registrant may rely upon it.
Very truly yours,
/s/ Kramer, Levin, Naftalis & Frankel
-------------------------------------
Kramer, Levin, Naftalis & Frankel
EXHIBIT 23
We consent to incorporation by reference in this registration statement
on Form S-8 of Mobius Management Systems, Inc. of our reports dated February 23,
1998, except as to Note 15 which is as of April 27, 1998, relating to the
consolidated balance sheets of Mobius Management Systems, Inc. and subsidiaries
as of June 30, 1996 and 1997 and December 31, 1997, and the related consolidated
statements of income, stockholders' equity, and cash flows for each of the years
in the three-year period ended June 30 , 1997 and the six months ended December
31, 1997, and the related schedule, which reports appears in the registration
statement No. 333-47117 on Form S-1, as amended of Mobius Management Systems,
Inc.
KPMG PEAT MARWICK, LLP
Stamford, Connecticut
