<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 8, 1999
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
ESOFT, INC.
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<CAPTION>
DELAWARE 7372 84-0938960
<S> <C> <C>
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
295 INTERLOCKEN BOULEVARD, SUITE 500
BROOMFIELD, COLORADO 80021
(303) 444-1600
(Address and Telephone Number of Registrant's Principal Executive Office)
---------------------------------
JEFFREY FINN
295 INTERLOCKEN BOULEVARD, SUITE 500
BROOMFIELD, COLORADO
(303) 444-1600
(Name, Address and Telephone Number of Agent for Service)
With Copies To:
LESTER R. WOODWARD, ESQ.
DAVIS, GRAHAM & STUBBS LLP
370 SEVENTEENTH STREET, SUITE 4700
DENVER, COLORADO 80202
(303) 892-9400
---------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.|_|
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |X| 333-82619
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed
Shares maximum maximum
Title of each class of to be offering price aggregate Amount of
securities to be registered registered(1) per share(2) offering price(2) registration fee(2)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 87,500 $4.03 $352,730 $99
======================================================================================================================
</TABLE>
(1) Pursuant to Rule 416, this registration statement also covers such
indeterminate number of shares of eSoft, Inc. common stock as may be
issued as a result of stock dividends, stock splits or similar
transactions prior to the termination of this registration statement.
(2) Estimated solely for the purpose of calculating the registration fee and
based upon the average of the high and low sales prices of the common
stock as reported on the Nasdaq SmallCap Market on September 7, 1999.
---------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
EXPLANATORY NOTE
This registration statement is being filed being filed pursuant to Rule
462(b) under the Securities Act of 1933 ("Rule 462(b)") and includes the
registration statement facing page, this page, the signature pages, an exhibit
index, an accountants' consent and an opinion of counsel. Pursuant to Rule
462(b), the contents of the registration statement on Form S-3 (File No.
333-82619) of the registrant, including the exhibits thereto (the "Initial
Registration Statement"), are incorporated by reference into this registration
statement. This registration statement covers the registration of an additional
sale by the registrant of an aggregate of $352,730 gross proceeds of common
stock for sale by certain stockholders of the registrant in the offering
referred to in the Initial Registration Statement.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Broomfield, Colorado on the 8th day of
September, 1999.
eSOFT, INC.
By: /s/ Jeffrey Finn
------------------------------------
Name: Jeffrey Finn
Title: President and Chief Executive
Officer
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>
Signatures Title Date
<S> <C> <C>
/s/ Philip Becker Chairman of the Board, Chief Technical Officer September 8, 1999
- -----------------------------------
Philip Becker
/s/ Jeffrey Finn Director, President and Chief Executive Officer September 8, 1999
- ----------------------------------- (Principal Executive Officer)
Jeffrey Finn
/s/ Amy Beth Hansman Principal Accounting Officer September 8, 1999
- -----------------------------------
Amy Beth Hansman
Director
- -----------------------------------
Richard Eyestone
Director
- -----------------------------------
Tom Loutzenheiser
/s/ Richard Rice Director September 8, 1999
- -----------------------------------
Richard Rice
</TABLE>
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
<S> <C>
5.1* Opinion of Davis, Graham & Stubbs LLP (including consent)
23.1* Consent of BDO Seidman, LLP
23.2* Consent of Balukoff, Lindstrom & Co., P.A.
</TABLE>
- -----------
* Filed herewith
<PAGE> 1
EXHIBIT 5.1
[Davis, Graham & Stubbs LLP Letterhead]
September 8, 1999
eSoft, Inc.
295 Interlocken Boulevard, #500
Broomfield, CO 80021
Re: Form S-3 Relating to 87,500 Shares of Common Stock
Ladies and Gentlemen:
We have acted as counsel for eSoft, Inc., a Delaware corporation (the
"Company") in connection with the preparation of a Registration Statement on
Form S-3 (the "Registration Statement") filed by the Company with the Securities
and Exchange Commission. The Registration Statement relates to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of 87,500 shares
of the Company's common stock, par value $.01 per share (the "Shares") offered
for the account of certain stockholders of the Company.
This opinion is delivered pursuant to the requirements of Item
601(b)(5) of Regulation S-K under the 1933 Act.
We have examined certain documents, corporate records and other
instruments and relied on originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records and other instruments,
have made such inquiries as to questions of fact of officers and representatives
of the Company, and have made such examinations of law as we have deemed
necessary or appropriate for purposes of giving the opinion expressed below. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with the originals of all documents submitted to us as copies.
The following opinions are limited solely to the applicable federal law
of the United States of America and the General Corporation Law of the State of
Delaware. While we are not licensed to practice in the State of Delaware, we
have reviewed applicable provisions of the General Corporation Law of Delaware
as we have deemed appropriate in connection with the provisions expressed
herein. Except as described, we have neither examined nor do we express any
opinion with respect to Delaware law.
Based upon and subject to the foregoing, we are of the opinion that:
1. The issuance and sale of the Shares, as provided in the Registration
Statement, have been duly and validly authorized by all necessary corporate
action of the Company.
2. The Shares that have been issued as of the date hereof have been
validly issued, fully paid and are non-assessable shares of capital stock of the
Company.
3. The Shares that have not been issued as of the date hereof will be,
when and if issued, validly issued, fully paid, and non-assessable shares of
capital stock of the Company.
<PAGE> 2
eSoft, Inc.
September 8, 1999
Page 2
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement. We also consent to the reference to
this firm under the heading "Validity of Securities" in the Prospectus included
in the Registration Statement as the counsel who will pass upon the validity of
the securities. 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 or the rules of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Davis, Graham & Stubbs LLP
DAVIS, GRAHAM & STUBBS LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
eSoft, Inc.
Broomfield, Colorado
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated January
29, 1999, relating to the financial statements of eSoft, Inc. appearing in the
Company's Annual Report on Form 10-KSB/A-1 for the year ended December 31, 1998
and our report dated July 16, 1999, relating to the supplemental consolidated
financial statements of eSoft, Inc. appearing in the Company's Form 8-K dated
August 9, 1999.
/s/ BDO SEIDMAN, LLP
Denver, Colorado
September 8, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Apexx Technology, Inc.
Boise, Idaho
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of eSoft, Inc. of our report dated February 4, 1999,
relating to the balance sheet of Apexx Technology, Inc. as of December 31, 1998
and the statements of operations, stockholders' deficit and cash flows for each
of the two years in the period ended December 31, 1998 appearing in eSoft's 8-K
dated August 9, 1999. Our report contains an explanatory paragraph regarding
Apexx Technology, Inc.'s ability to continue as a going concern.
/s/ Balukoff, Lindstrom & Co., P.A.
Boise, Idaho
September 8, 1999
