<PAGE> 1
As filed with the Securities and Exchange Commission on January 28, 2000
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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UBICS, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
(State of Other Jurisdiction of Incorporation or Organization)
34-1744587
(IRS Employer Identification Number)
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333 Technology Drive, Suite 210, Southpointe, Cannonsburg, Pennsylvania 15317
(Address of Principal Executive Offices and Zip Code)
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UBICS, INC. 1997 STOCK OPTION PLAN
(Full title of the Plan)
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Manohar B. Hira
President
UBICS, INC.
333 Technology Drive
Suite 210, Southpointe
Canonsburg, Pennsylvania 15317
(724) 746-6001
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
Copy to:
David J. Lowe, Esquire
PEPPER HAMILTON LLP
One Mellon Bank Center
500 Grant Street, 50th Floor
Pittsburgh, Pennsylvania 15219
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) per Share (2) Price (2) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,300,000 $7.125 $9,262,500 $2,445.30
$.01 par value shares
</TABLE>
(1) Represents the number of shares of Common Stock that may be purchased
pursuant to the UBICS, Inc. 1997 Stock Option Plan (the "Plan"). Pursuant
to Rule 416 under the Securities Act of 1933, this Registration Statement
also covers such number of additional shares of Common Stock which may
become available for purchase pursuant to the Plan in the event of certain
changes in outstanding shares, including reorganizations,
recapitalizations, stock splits, stock dividends and stock combinations.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based upon the market value per share of UBICS,
Inc. Common Stock as of January 21, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. Plan Information
Omitted pursuant to Form S-8.
ITEM 2. Registrant Information and Employee Plan Annual Information
Omitted pursuant to Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed by UBICS, Inc.
(the "Company" or "Registrant") with the U.S. Securities and Exchange Commission
(the "Commission") are, as of their respective dates, incorporated into this
Registration Statement by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999;
(c) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999;
(d) the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999; and
(e) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1, Registration No. 333-35171.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 after the date hereof and prior
to the filing of a post-effective amendment hereto that indicates that all
shares of Common Stock registered hereby have been sold or that deregisters all
such shares then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be part hereof from the date
of filing of such documents. Any statement contained herein or 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 other subsequently filed
document which also is or is deemed to be incorporated by reference herein.
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 (the "DGCL")
contains provisions for mandatory and discretionary indemnification of a
corporation's directors, officers and other personnel, and related matters.
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Under Section 145(a), subject to certain limitations, a corporation has
the power to indemnify directors and officers under certain prescribed
circumstances against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
an action, suit or proceeding, whether civil, criminal, administrative or
investigative, to which any of them is a party by reason of his being a
representative, director or officer of the corporation or serving at the request
of the corporation as a representative of another corporation, partnership,
joint venture, trust or other enterprise, 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. Under Section 145(c),
indemnification is mandatory to the extent that the officer or director has been
successful on the merits or otherwise in defense of any action or proceeding if
the appropriate standards of conduct are met.
Section 145(b) provides for indemnification in derivative actions
except in respect of any claim, issue or matter as to which the person has been
adjudged to be liable to the corporation unless and only to the extent that the
proper court determines upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, the person is fairly
and reasonably entitled to indemnity for the expenses that the court deems
proper.
Section 145(d) provides that, unless ordered by a court, any
indemnification under Section 145(a) or 145(b) shall be made by the corporation
only as authorized in the specific case upon a determination that the
representative met the applicable standard of conduct, and such determination
will be made by the board of directors (i) by a majority vote of a quorum of
directors not parties to the action, suit or proceeding; (ii) if a quorum is not
obtainable, or if obtainable and a majority of disinterested directors so
directs, by independent legal counsel; or (iii) the stockholders.
Section 145(e) provides that expenses incurred by an officer, director,
employee or agent in defending a civil, criminal, administrative, or
investigative action, suit or proceeding may be paid by the corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such person to repay such amount if it
shall ultimately be determined that he or she is not entitled to be indemnified
by the corporation.
Section 145(f) provides that the indemnification and advancement of
expenses provided by the other subsections of Section 145 shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding that
office.
Section 145(g) also grants to a corporation the power to purchase and
maintain insurance on behalf of any director or officer against any liability
incurred by him or her in his or her capacity as officer or director, whether or
not the corporation would have the power to indemnify him or her against the
liability under the provisions of Section 145 of the DGCL.
Section 145(h) and 145(i)extend the indemnification and advancement of
expenses provisions contained in Section 145 of the DGCL to successor
corporations in fundamental changes and to representatives serving as
fiduciaries of employee benefits plans.
Section 145(j) provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, Section 145 of the DGCL, 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 the heirs, executors and administrators of such person.
Reference is made to Article VII of the Registrant's Amended and
Restated Certificate of Incorporation, which provides in general for the
indemnification of the Registrant's officers and directors to the fullest extent
authorized by law. The Registrant also has entered into indemnification
agreements with its directors providing for such indemnification to the fullest
extent permitted by law. In addition, the Registrant has obtained officers' and
directors' liability insurance which insures against certain liabilities that
officers and directors of the Registrant may incur in such capacities.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director shall not be personally liable to
the corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (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) in respect of certain unlawful dividend payments or
stock redemptions or repurchases; or (iv) for any transaction from which the
director derived an improper personal benefit. Article VI of the Registrant's
Amended and Restated Certificate of Incorporation contains such a provision
concerning the limitation of liability of directors and officers.
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ITEM 7. Exemption from Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
The following exhibits are included in this Registration Statement:
Exhibit Description
Number
4.1 Amended and Restated Certificate of Incorporation,
(incorporated by reference from the Registrant's
Registration Statement on Form S-1, Registration No.
333-35171).
4.2 Amended and Restated By-Laws of the Registrant
(incorporated by reference from the Registrant's
Registration Statement on Form S-1, Registration No.
333-35171).
4.3 Specimen of Share of Common Stock of the Registrant
(incorporated by reference from the Registrant's
Registration Statement on Form S-1, Registration No.
333-35171).
4.4 UBICS, Inc. 1997 Stock Option Plan, as amended
(incorporated by reference from the Registrant's
Schedule 14A filed on November 5, 1999).
5.1 Opinion of Pepper Hamilton LLP.
23.1 Consent of Pepper Hamilton LLP (included in Exhibit
5.1).
23.2 Consent of Arthur Andersen LLP, Certified Public
Accountants.
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 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 (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 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 this Registration Statement;
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(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 an
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 offering.
(b) The undersigned Registrant hereby undertakes that, for the 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 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
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 information 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 the
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 to 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 Canonsburg, Pennsylvania, on January 28, 2000.
UBICS, INC.
(Registrant)
By: /s/ MANOHAR B. HIRA
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Manohar B. Hira, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities indicated, on January 28, 2000.
Signature Capacity
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/s/ VIJAY MALLYA
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Vijay Mallya Chairman and Director (Principal
Executive Officer)
/s/ MANOHAR B. HIRA
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Manohar B. Hira President and Director
/s/ SCOTT R. HELDFOND
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Scott R. Heldfond Director
/s/ KENT D. PRICE
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Kent D. Price Director
/s/ BABU SRINIVAS
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Babu Srinivas Vice President, Finance and Accounting,
and Secretary (Principal Financial
Officer and Principal Accounting
Officer)
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INDEX TO EXHIBITS
Exhibit Number
and Description
4.1 Amended and Restated Certificate of Incorporation, (incorporated by
reference from the Registrant's Registration Statement on Form S-1,
Registration No. 333-35171).
4.2 Amended and Restated By-Laws of the Registrant (incorporated by
reference from the Registrant's Registration Statement on Form S-1,
Registration No. 333-35171).
4.3 Specimen of Share of Common Stock of the Registrant (incorporated by
reference from the Registrant's Registration Statement on Form S-1,
Registration No. 333-35171).
4.4 UBICS, Inc. 1997 Stock Option Plan, as amended (incorporated by
reference from the Registrant's Schedule 14A filed on November 5,
1999).
5.1 Opinion of Pepper Hamilton LLP.
23.1 Consent of Pepper Hamilton LLP (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Certified Public Accountants.
<PAGE> 1
EXHIBIT 5.1
January 28, 2000
UBICS, Inc.
333 Technology Drive
Suite 210, Southpointe
Cannonsburg, Pennsylvania 15317
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have acted as counsel for UBICS, Inc., a Delaware corporation (the
"Company"), in connection with the preparation of the Company's Registration
Statement on Form S-8 ("Registration Statement") under the Securities Act of
1933, as amended, with respect to 1,300,000 shares of common stock (the
"Shares"), par value $.01 per share, of the Company (the "Common Stock"). The
Shares are reserved for issuance upon exercise of stock options granted or
available to be granted under the UBICS, Inc. 1987 Stock Option Plan, as
amended,(the "Plan").
In our capacity as counsel, we have been requested to render the
opinion set forth in this letter and in connection therewith, we have reviewed
the following documents and materials: (i) the Amended and Restated Certificate
of Incorporation of the Company, (ii) the Amended and Restated Bylaws of the
Company, (iii) the Registration Statement, (iv) the Plan, (v) certain minutes of
meetings and resolutions of the Board of Directors of the Company, and (vi) such
other documents, instruments and records as we deemed necessary or appropriate
for purposes of rendering the opinion set forth herein.
In rendering this opinion, we have assumed and relied upon, without
independent investigation, (i) the oral representations of officers or
representatives of the Company and (ii) the representations and warranties of
the Company contained in the documents referenced above for the truth, accuracy
and completeness of the matters contained therein.
In addition, we have assumed and relied upon, without independent
investigation, (i) the authenticity, completeness, truth and due authorization
and execution of all documents submitted to us as originals, (ii) the
genuineness of all signatures on all documents submitted to us as originals, and
(iii) the conformity to the originals of all documents submitted to us as
certified or photostatic copies.
No opinion is expressed herein in any respect as to (i) federal and
state securities laws and regulations, (ii) pension and employee benefit laws
and regulations, including without limitation the Employee Retirement Income
Security Act of 1974, as amended, and (iii) federal and state tax laws and
regulations.
The opinion expressed herein is limited and qualified in all respects
by the effects of general principles of equity, whether applied by a court of
law or equity, and by the effects of bankruptcy, insolvency, reorganization,
moratorium, arrangement, fraudulent conveyance or fraudulent transfer,
receivership, and other laws now or hereafter in force affecting the rights and
remedies of creditors generally (not just creditors of specific types of
debtors) and other laws now or hereafter in force affecting generally only
creditors of specific types of debtors.
The law covered by the opinion expressed herein is limited to (i) the
Federal statutes, judicial decisions and rules and regulations of the
governmental agencies of the United States and (ii) the Delaware General
Corporation Law, as amended.
This opinion letter is given only with respect to laws and regulations
presently in effect. We assume no obligation to advise you of any changes in law
or regulation which may hereafter occur, whether the same are retroactively or
prospectively applied, or to update or supplement this letter in any fashion to
reflect any facts or circumstances which hereafter come to our attention.
Based upon, and subject to, the foregoing, we are of the opinion, as of
the date hereof, that the Shares will be, when and if issued in accordance with
the terms of the Plan and upon receipt by the Company of the required
consideration, validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and we further consent to any reference to our firm in
the Registration Statement as legal counsel who have passed upon the legality of
the securities offered thereby.
/s/ PEPPER HAMILTON LLP
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EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
UBICS, Inc.
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 18, 1999 included in UBICS, Inc.'s Form 10-K for the year ended
December 31, 1998 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Pittsburgh, Pennsylvania
January 28, 2000
