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As filed with the Securities and Exchange Commission on October 15, 1998
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ESOFT, INC.
(Exact name of registrant as specified in its charter)
----------------------
DELAWARE 84-0938960
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5335 STERLING DRIVE, SUITE C
BOULDER, COLORADO 80301
(303) 444-1600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
EQUITY INCENTIVE PLAN
(Full title of plan)
----------------------
PHILIP L. BECKER WITH A COPY TO:
CHIEF EXECUTIVE OFFICER LESTER R. WOODWARD, ESQ.
5335 STERLING DRIVE, SUITE C DAVIS, GRAHAM & STUBBS LLP
BOULDER, COLORADO 80301 370 17TH STREET, SUITE 4700
(303) 444-1600 DENVER, COLORADO 80202
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Proposed
maximum maximum
Title ach class of offering price per aggregate Amount of
securities to be registered Amount to be registered share(1) offering price(1) registration fee
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
Common Stock ($.01 par value) 900,000 shares $2.57 $2,313,000 $ 682.34
====================================================================================================================
</TABLE>
(1) The price per share and aggregate offering price are based upon the average
of the high and low sale prices of the Company's Common Stock on October
14, 1998 as reported on the Nasdaq Small Cap Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed by eSoft, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
hereby incorporated or deemed to be incorporated in this Registration Statement
by reference:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997, filed with the Commission on March 31, 1998.
(b) The Company's Amendment No. 1 to its Annual Report on Form
10-KSB/A for the year ended December 31, 1997, filed with the Commission on
April 17, 1998.
(c) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1998, filed with the Commission on April 28, 1998.
(d) The Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1998, filed with the Commission on July 24, 1998.
(e) The Company's Amendment No. 1 to its Quarterly Report on Form
10-QSB/A for the quarter ended June 30, 1998, filed with the commission on
September 3, 1998.
(f) The description of the Company's Common Stock contained in
Amendment No. 1 to the Company's Registration Statement on Form SB-2 (No.
333-61795), filed with the Commission on September 30, 1998.
(g) All other documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
Post-Effective Amendment to this Registration Statement indicating that all
securities offered under the Registration Statement have been sold, or
deregistering all securities then remaining unsold.
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 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.
4. DESCRIPTION OF SECURITIES.
Not applicable.
5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws and Certificate of Incorporation provide that the
Company shall, to the full extent permitted by the General Corporation Law of
the State of Delaware, as amended from time to time, indemnify all directors and
officers of the Company. Section 145 of the Delaware General Corporation Law
provides in part that a corporation shall have the power 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 (other than an action by or in
the right of the corporation) by reason of the fact that such person 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 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.
Similar indemnity is authorized for such persons against expenses (including
attorneys' fees) actually and reasonably incurred in defense or settlement of
any threatened, pending or completed action or suit by or in the right of the
corporation, if such person 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
provided further that (unless a court of competent jurisdiction otherwise
provides) such person shall not have been adjudged liable to the corporation.
Any such indemnification may be made only as authorized in each specific case
upon a determination by the stockholders or disinterested directors that
indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Additionally, the Certificate of Incorporation eliminates in certain
circumstances the monetary liability of directors of the Company for a breach of
their fiduciary duty as directors. This provision does not eliminate the
liability of a director (i) for a breach of the director's duty of loyalty to
the Company or its stockholders; (ii) for acts or omissions by the director not
in good faith or which involve intentional misconduct or a knowing violation of
law; (iii) for liability arising under Section 174 of the Delaware General
Corporation Law (relating to the declaration of dividends and purchase or
redemption of shares in violation of the Delaware General Corporation Law); or
(iv) for any transaction from which the director derived an improper personal
benefit.
7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
8. EXHIBITS
4.1 Certificate of Incorporation of the Company.1/
4.2 Restated Bylaws of the Company.1/
- ----------------
1/ Filed previously as an Exhibit to the Company's Amendment No. 1 to
Registration Statement on Form 10-SB, as filed with the Commission on
February 18, 1998, and incorporated herein by reference.
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4.3 Form of Common Stock Certificate of the Company.2/
5.1 Opinion and Consent of Davis, Graham & Stubbs LLP.
24.1 Consent of Davis, Graham & Stubbs LLP (included in
Exhibit 5.1).
24.2 Consent of Certified Public Accountants.
25.1 Power of Attorney (included in signature page).
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 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 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; 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 purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or 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 Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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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2/ Filed previously as an Exhibit to the Company's Registration Statement
on Form 10-SB, as filed with the Commission on December 22, 1997, and
incorporated herein by reference.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Boulder, State of Colorado, on the 14 day of October,
1998.
eSOFT, INC.
By: /s/ Philip L. Becker
-------------------------------------
Philip L. Becker, Chief Executive
Officer and Chairman of the Board
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Philip L. Becker, Lester R.
Woodward and Thomas R. Tennessen, and each or any of them, his true and lawful
attorney-in-fact and agent, 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 and any registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended) 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 attorney-in-fact and agents, or any of them, or their
or his substitutes or substitute, 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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Philip L. Becker Chief Executive Officer October 14, 1998
- --------------------------------------- and Chairman of the Board
Philip L. Becker (Principal Executive Officer)
/s/ Thomas R. Tennessen Secretary, Treasurer, and Chief October 14, 1998
- --------------------------------------- Financial Officer (Principal
Thomas R. Tennessen Financial Officer)
/s/ Regis A. Frank President, Chief Operation October 14, 1998
- --------------------------------------- Officer and Director
Regis A. Frank
/s/ Michael W. Johnson Director October 14, 1998
- ---------------------------------------
Michael W. Johnson
/s/ Richard B. Rice Director October 15, 1998
- ---------------------------------------
Richard B. Rice
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
No. Description Page No.
<S> <C> <C>
5.1 Opinion and Consent of Davis, Graham & Stubbs LLP.
24.1 Consent of Davis, Graham & Stubbs LLP (included in Exhibit 5.1).
24.2 Consent of Certified Public Accountants.
25.1 Power of Attorney (included in signature page).
</TABLE>
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EXHIBIT 5.1
October 14, 1998
eSoft, Inc.
5335 Sterling Drive, Suite C
Boulder, Colorado 80301
Re: Sale of Common Stock Pursuant to Registration Statement
on Form S-8 Covering Equity Incentive Plan
Ladies and Gentlemen:
We have acted as counsel to eSoft, Inc. (the "Company") in connection
with the registration by the Company of 900,000 shares of Common Stock, $.01 par
value (the "Shares"), described in the Registration Statement on Form S-8 of the
Company being filed with the Securities and Exchange Commission concurrently
herewith. The Shares have been or may be issued by the Company pursuant to the
Company's Equity Incentive Plan (the "Plan"), which provides for the possible
grant of shares of Common Stock or options to acquire shares of Common Stock of
the Company in accordance with the Plan. In such connection we have examined
certain corporate records and proceedings of the Company, including actions
taken by the Company's Board of Directors in respect of the authorization and
issuance of the Shares to meet the requirements of the Plan, and such other
matters as we deemed appropriate.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when issued as contemplated by the Registration
Statement, will be legally issued, fully paid and non-assessable shares of
capital stock of the Company.
We hereby consent to be named in the Registration Statement and in the
Prospectus constituting a part thereof, as amended from time to time, as the
attorneys who will pass upon legal matters in connection with the issuance of
the Shares, and to the filing of this opinion as an exhibit to the aforesaid
Registration Statement. In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules of the Securities and Exchange Commission.
Very truly yours,
/s/ DAVIS, GRAHAM & STUBBS LLP
DAVIS, GRAHAM & STUBBS LLP
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EXHIBIT 24.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Equity Incentive Plan of
eSoft, Inc., of our report dated March 5, 1998, relating to the financial
statements of eSoft, Inc. appearing in the Company's Form 10-KSB and Form
10KSB/A No. 1 for the year ended December 31, 1997, filed with the Securities
and Exchange Commission.
/s/ BDO SEIDMAN LLP
BDO SEIDMAN LLP
Denver, Colorado
October 14, 1998
