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As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PEREGRINE SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-3773312
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
3611 VALLEY CENTRE DRIVE
SAN DIEGO, CALIFORNIA 92130
(Address of principal executive offices)
-------------------------------------
1999 NONSTATUTORY STOCK OPTION PLAN
-------------------------------------
ERIC P. DELLER
VICE PRESIDENT AND GENERAL COUNSEL
PEREGRINE SYSTEMS, INC.
3611 VALLEY CENTRE DRIVE
SAN DIEGO, CALIFORNIA 92130
(858) 481-5000
(Name, address and telephone number of agent for service)
-----------------------------------------------
Copy to:
Douglas H. Collom, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
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Maximum Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share (1) Offering Price (1) Fee
------------------------------------------------------ ------------------- -------------------- -------------------- ---------------
<S> <C> <C> <C> <C>
Common Stock ($0.001 par value) issuable under
the 1999 Nonstatutory Stock Option Plan........ 2,995,650 $19.38 $58,055,697.00 $15,326.70
====================================================================================================================================
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
computing the amount of the registration fee based on the prices of Peregrine
Systems, Inc. common stock as reported on the Nasdaq National Market on
December 20, 2000.
====================================================================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Peregrine Systems, Inc. ("Peregrine") hereby incorporates by reference in
this registration statement the following documents:
(a) Peregrine's Annual Report on Form 10-K for the fiscal year ended March
31, 2000 filed pursuant to Section 13 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(b) Peregrine's Quarterly Reports on Form 10-Q for the quarters ended June
30, 2000 and September 30, 2000 filed pursuant to Section 13 of the Exchange
Act.
(c) Peregrine's Current Report on Form 8-K/A filed on May 22, 2000 pursuant
to Section 13 of the Exchange Act.
(d) Peregrine's Current Report on Form 8-K filed on June 29, 2000
pursuant to Section 13 of the Exchange Act (which incorporated certain
financial statements, notes and reports in Peregrine's registration statement
Form S-4 (File No. 333-367444))
(e) Peregrine's two Current Reports on Form 8-K filed on November 3, 2000
pursuant to Section 13 of the Exchange Act.
(f) Peregrine's Current Report on Form 8-K filed on November 13, 2000
pursuant to Section 13 of the Exchange Act.
(g) Peregrine's Current Report on Form 8-K filed on November 14, 2000
pursuant to Section 13 of the Exchange Act.
(h) Peregrine's Current Report on Form 8-K filed on December 11, 2000
pursuant to Section 13 of the Exchange Act.
(i) The description of Peregrine's Common Stock contained in its
Registration Statement on Form 8-A, filed March 7, 1997 pursuant to Section
12(g) of the Exchange Act.
All documents subsequently filed by Peregrine 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 remaining unsold, shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of
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
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents and in agreements between the
corporation and its directors and officers provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article IX of Peregrine's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under Delaware law.
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Article VI of Peregrine's Bylaws provides for the indemnification of
officers, directors and third parties acting on behalf of the corporation to the
fullest extent permissible under the General Corporation Law of Delaware.
Peregrine has entered into indemnification agreements with its directors
and executive officers, in addition to the indemnification provided for in
Peregrine's Bylaws, and intends to enter into indemnification agreements with
any new directors and executive officers in the future.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers, or persons controlling us
pursuant to the foregoing provisions, we have been informed 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 June 2000, Peregrine completed its acquisition of Harbinger Corporation.
Harbinger and some of its former officers and directors are defendants in
outstanding shareholder litigation under which the plaintiffs have alleged
causes of action for misrepresentation, violations of federal securities laws,
and accounting improprieties. Harbinger is obligated under agreements with each
of its officers and directors to indemnify them for the costs incurred in
connection with defending themselves against this litigation and is obligated to
indemnify them to the maximum extent permitted under applicable law if they are
held liable. In connection with the acquisition, Peregrine agreed to honor these
contractual arrangements. In addition, certain directors and officers of
Harbinger became directors and officers of Peregrine following the
acquisition.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
4.1 Peregrine Systems, Inc. 1999 Nonstatutory Stock Option Plan.
4.2 Form of Stock Option Agreement for 1999 Nonstatutory Stock
Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
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 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;
(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 (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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.
(b) 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 Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Securities 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.
(c) 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.
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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 San Diego, State of California, on December 20, 2000.
PEREGRINE SYSTEMS, INC.
By: /s/ STEPHEN P. GARDNER
----------------------
Name: Stephen P. Gardner
Title: Chief Executive Officer and
Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard T. Nelson and Eric P. Deller and
each one of them, acting individually and without the other, as his or her
attorney-in-fact, each with full power of substitution, for him in any and all
capacities, to sign any and all amendments to this Registration Statement on
Form S-8, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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 below by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ STEPHEN P. GARDNER Chief Executive Officer (Principal December 20, 2000
------------------------------------- Executive Officer) and Chairman
Stephen P. Gardner
/s/ MATTHEW C. GLESS Vice President Chief Financial Officer December 20, 2000
------------------------------------- (Principal Financial Officer) and Director
Matthew C. Gless
/s/ CHRISTOPHER A. COLE Director December 20, 2000
-------------------------------------
Christopher A. Cole
/s/ JOHN J. MOORES Director December 20, 2000
-------------------------------------
John J. Moores
/s/ CHARLES E. NOELL, III Director December 20, 2000
-------------------------------------
Charles E. Noell, III
/s/ WILLIAM D. SAVOY Director December 20, 2000
-------------------------------------
William D. Savoy
/s/ THOMAS G. WATROUS, SR. Director December 20, 2000
-------------------------------------
Thomas G. Watrous, Sr.
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EXHIBIT INDEX
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Exhibit
Number Document
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<S> <C>
4.1 Peregrine Systems, Inc. 1999 Nonstatutory Stock Option Plan.
4.2 Form of Stock Option Agreement for 1999 Nonstatutory Stock Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of KPMG LLP.
23.3 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-4)
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