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As filed with the Securities and Exchange Commission on May 21, 1999
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
TenFold Corporation
(Exact Name of Registrant as Specified in Its Charter)
Delaware 83-0302610
(State of Incorporation) (I.R.S. Employer Identification No.)
180 West Election Road
Draper, Utah 84020
(Address of Principal Executive Offices)
_______________________
1999 Employee Stock Purchase Plan
1999 Stock Plan
1993 Flexible Stock Incentive Plan
(Full title of the Plans)
_______________________
Gary D. Kennedy
President and Chief Executive Officer
TenFold Corporation
180 West Election Road
Draper, Utah 84020
(650) 495-1010
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Donald M. Keller, Jr.
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------
Maximum
Maximum Amount Offering Maximum
to be Price Per Aggregate Amount of
Title of Securities to be Registered Registered(1) Share Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Employee Stock Purchase Plan
Common Stock,
$0.001 par value........................... 1,000,000 Shares $14.45(2) $14,450,000 $4,017.10
1999 Stock Plan
Common Stock,
$0.001 par value.......................... 6,500,000 Shares $17.00(3) $110,500,000 $30,719.00
1993 Flexible Stock Incentive Plan
Common Stock,
$0.001 par value.......................... 7,189,900 Shares $ 3.78(4) $ 27,177,822 $ 7,555.43
1993 Flexible Stock Incentive Plan
Common Stock,
$0.001 par value.......................... 389,000 Shares $17.00(3) $ 6,613,000 $ 1,838.41
TOTAL 15,078,900 Shares $ 3.78 to $158,740,822 $44,129.94
$17.00
</TABLE>
_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
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registration fee. The computation is based upon the offering price per
share of Common Stock as set forth in the Registrant's Registration
Statement on Form S-1 (File No. 333-74057), as amended, multiplied by 85%,
which is the percentage of the trading purchase price applicable to
purchases under the referenced plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the offering price per share of
Common Stock as set forth in the Registrant's Registration Statement on
Form S-1 (File No. 333-74057), as amended.
(4) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. The computation is based
upon the weighted average per share exercise price of outstanding options
under the referenced plan, of which the underlying shares of Common Stock
are registered hereby.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
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(a) The Registrant's Prospectus filed on May 20, 1999 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on March
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29, 1999, as amended on May 18, 1999, including any amendment or report filed
for the purpose of updating such description.
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 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 and to be part
hereof from the date of filing such documents.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel. Not applicable.
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Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers, as well as
other employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, bylaws, disinterested director vote, stockholder vote, agreement or
otherwise.
The Company's Restated Certificate of Incorporation limits the liability of
directors to the full extent permitted by Delaware law. Delaware law provides
that a corporation's certificate of incorporation may contain a provision
eliminating or limiting the personal liability of directors for monetary damages
for breach of their fiduciary duties as directors, except for liability (i) for
any breach of their 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) for unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL
or (iv) for any transaction from which the director derived an improper personal
benefit. The Company's Bylaws provide that the Company shall indemnify its
directors and officers and may indemnify its employees and agents to the fullest
extent permitted by law. The Company believes that indemnification under its
Bylaws covers at least negligence and gross negligence on the part of
indemnified parties.
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The Company intends to enter into agreements which indemnify its directors
and executive officers. These agreements, among other things, indemnify the
Company's directors and officers for certain expenses (including attorneys'
fees), judgments, fines and settlement amounts incurred by such persons in any
action or proceeding, including any action by or in the right of the Company,
arising out of such person's services as a director or officer of the Company,
any subsidiary of the Company or any other company or enterprise to which the
person provides services at the request of the Company. The Company believes
that these provisions and agreements are necessary to attract and retain
qualified directors and officers.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding that might result in a claim for such indemnification.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney (see p. 6).
Item 9. Undertakings.
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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 purposes 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 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.
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 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 the 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 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
3
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person of the Registrant in a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the question has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of 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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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
TenFold Corporation, a corporation organized and existing under the laws of the
State of Delaware, 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 Draper, State of Utah, on May 21, 1999.
TenFold Corporation
By: /s/ Gary D. Kennedy
--------------------------------------
Gary D. Kennedy
President and Chief Executive Officer
5
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gary D. Kennedy and Robert P. Hughes,
jointly and severally, his attorneys-in-fact and agents, each with the power of
substitution and resubstitution, for him and in his name, place or stead, in any
and all capacities, to sign any amendments to this Registration Statement on
Form S-8, and to file such amendments, together with exhibits and other
documents in connection therewith, with the Securities and Exchange Commission,
granting to each attorney-in-fact and agent, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully as he might or could do in person, and ratifying
and confirming all that the attorney-in-facts and agents, 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 by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary D. Kennedy President, Chief Executive Officer and May 21, 1999
- ------------------------------------- Director (Principal Executive Officer)
Gary D. Kennedy
/s/ Robert P. Hughes Senior Vice President and Chief Financial May 21, 1999
- ------------------------------------- Officer (Principal Financial and Accounting
Robert P. Hughes Officer)
/s/ Raymond H. Bingham Director May 21, 1999
- -------------------------------------
Raymond H. Bingham
/s/ Robert W. Felton Director May 21, 1999
- -------------------------------------
Robert W. Felton
/s/ Ralph W. Hardy, Jr. Director May 21, 1999
- -------------------------------------
Ralph W. Hardy, Jr.
/s/ Kay R. Whitmore Director May 21, 1999
- -------------------------------------
Kay R. Whitmore
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number
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5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation.
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors.
24.1 Powers of Attorney (see p. 6).
7
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Exhibit 5.1
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OPINION OF VENTURE LAW GROUP
May 21, 1999
TenFold Corporation
180 West Election Road
Draper, Utah 84020
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about May 21, 1999 (the
"Registration Statement") in connection with the registration under the
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Securities Act of 1933, as amended, of 1,000,000, 6,500,000 and 7,578,900
shares of your Common Stock (collectively, the "Shares") reserved for issuance
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under the 1999 Employee Stock Purchase Plan, the 1999 Stock Plan and the 1993
Flexible Stock Incentive Plan, respectively (each, a "Plan" and collectively,
----
the " Plans"). As your legal counsel, we have examined the proceedings taken
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and are familiar with the proceedings proposed to be taken by you in connection
with the sale and issuance of the Shares under the Plans.
It is our opinion that, when issued and sold in the manner referred to in
each respective Plan and pursuant to the respective agreements which accompany
each sale, grant or issuance, as applicable, under the respective Plan, the
Shares will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement and any amendments to it.
Sincerely,
VENTURE LAW GROUP,
A Professional Corporation
/s/ Venture Law Group
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Exhibit 23.2
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CONSENT OF INDEPENDENT AUDITORS
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We consent to the incorporation by reference in the Registration Statement on
Form S-8 of TenFold Corporation of our report dated January 21, 1999, except as
to Note 13 which is as of April 22, 1999, relating to the consolidated balance
sheets of TenFold Corporation and subsidiary as of December 31, 1997 and 1998,
and the related consolidated statements of operations, changes in stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1998, and related schedule, which report appears in the
Registration Statement on Form S-1 (File No. 333-74057), as amended, of TenFold
Corporation.
/s/ KPMG
Salt Lake City, Utah
May 19, 1999
