<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 6, 1998
REGISTRATION NO. _________
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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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EVOLVING SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware 84-1010843
(State of Incorporation) (I.R.S. Employer Identification No.)
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9777 Mt. Pyramid Court
ENGLEWOOD, COLORADO 80112
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(Address of Principal Executive Offices)
AMENDED AND RESTATED STOCK OPTION PLAN
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(Full Title of the Plan)
J. RICHARD ABRAMSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EVOLVING SYSTEMS, INC.
9777 MT. PYRAMID COURT
ENGLEWOOD, COLORADO 80112
(303) 802-1000
----------------------------------
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
COPIES TO:
REX R. O'NEAL, ESQ.
COOLEY GODWARD LLP
2595 Canyon Boulevard, Suite 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock (par 2,124,584 $6.08
value $.001)
884,436 $4.88 $17,233,518.40 $5,084.00
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and 457(h)(1). The price per
share and aggregate offering price are based upon (a) the weighted
average exercise price for shares subject to options previously granted
under the Registrant's Amended and Restated Stock Option Plan pursuant
to Rule 457(h)(1) under the Securities Act of 1933, as amended (the
"Securities Act"), and (b) for shares granted after the date hereof,
the average of the high and low prices of the Registrant's Common Stock
on August 4, 1998, as reported on The Nasdaq National Market (National
Market).
<TABLE>
<CAPTION>
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
======================================================================================================================
<S> <C> <C> <C>
Shares issuable pursuant 2,124,584 $6.08 $12,917,470.72
to options outstanding
under the Amended and
Restated Stock Option
Plan
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Shares issuable upon 884,436 $4.88 $ 4,316,047.68
exercise of options
available for grant under
the Amended and Restated
Stock Option Plan
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=====================================================================================================================
</TABLE>
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Evolving Systems, Inc. (the "Registrant")
with the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(A) The Registrant's Prospectus dated May 11, 1998 (Registration No. 333-
43973).
(B) The Registrant's Quarterly Report on Form 10-Q (File No. 000-24081) for
the fiscal quarter ended March 31, 1998.
(C) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A.
(D) All reports and other documents hereafter filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all of the securities offered hereby
have been sold or which deregisters all such securities then remaining unsold.
Any statement contained in a document incorporated, or deemed to be
incorporated, by reference herein or contained in this Registration Statement
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 such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Registrant's Amended and Restated Certificate of Incorporation provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Registrant has entered into indemnification agreements with each of its
directors and executive officers under which the Registrant has agreed to
indemnify each of them against expenses and losses incurred for claims brought
against them by reason of their being a director or executive officer of the
Registrant and the Registrant maintains directors' and officers' liability
insurance.
<PAGE>
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<C> <S>
4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3(i).3 to the Registrant's Registration Statement on Form S-1
(Registration No. 333-43973)).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit
3(ii).2 to the Registrant's Registration Statement on Form S-1 (Registration No.
333-43973)).
4.3 Specimen stock certificate (incorporated by reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-43973)).
5.1 Opinion of Cooley Godward llp.
10.1 Amended and Restated Stock Option Plan (incorporated by reference to Exhibit 10.2 to the
Registrant's Registration Statement on Form S-1 (Registration No. 333-43973)).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Cooley Godward llp (included in Exhibit 5.1).
24 Power of Attorney. Reference is made to the signature pages.
</TABLE>
<PAGE>
UNDERTAKINGS
1. The Registrant hereby undertakes:
(A) 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;
(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)(i) and (a)(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 with or furnished to the
Securities and Exchange Commission pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(B) That, for the purpose 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.
(C) 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.
2. The 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 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant, 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 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 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
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Englewood, State of Colorado, on the 6th day of
August, 1998.
EVOLVING SYSTEMS, INC.
By: /s/ J. Richard Abramson
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J. Richard Abramson
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints J. Richard Abramson and Anita T. Moseley,
and each of them, as his true and lawful attorneys-in-fact and agents, 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) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents 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 attorneys-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, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. Richard Abramson President, Chief Executive Officer and August 6, 1998
------------------------------------- Director (Principal Executive Officer)
J. Richard Abramson
/s/ Roger A. Barnes Senior Vice President of Finance, Chief August 6, 1998
------------------------------------- Financial Officer, Treasurer and Assistant
Roger A. Barnes Secretary (Principal Financial and Accounting
Officer)
/s/ Donald R. Dixon Director August 6, 1998
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Donald R. Dixon
/s/ Harry B. Fair Director August 6, 1998
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Harry B. Fair
/s/ George A. Hallenbeck Director August 6, 1998
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George A. Hallenbeck
/s/ Robert J. Loarie Director August 6, 1998
-------------------------------------
Robert J. Loarie
/s/ David J. Molny Director August 6, 1998
-------------------------------------
David J. Molny
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated by reference to Exhibit 3(i).3 to the
Registrant's Registration Statement on Form S-1 (Registration
No. 333-43973)).
4.2 Amended and Restated Bylaws of the Registrant (incorporated by
reference to Exhibit 3(ii).2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-43973)).
4.3 Specimen stock certificate (incorporated by reference to Exhibit
4.2 to the Registrant's Registration Statement on Form S-1
(Registration No. 333-43973)).
5.1 Opinion of Cooley Godward LLP.
10.1 Amended and Restated Stock Option Plan (incorporated by
reference to Exhibit 10.2 to the Registrant's Registration
Statement on Form S-1 (Registration No. 333-43973)).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on page 4).
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF COOLEY GODWARD LLP]
August 6, 1998
Evolving Systems, Inc.
9777 Mt. Pyramid Court
Englewood, Colorado 80112
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Evolving Systems, Inc. (the "Registrant") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 3,009,020 shares of the
Registrant's Common Stock, $.001 par value, pursuant to the Registrant's Amended
and Restated Stock Option Plan (the "Plan") (the "Shares").
In connection with this opinion, we have (i) examined the Registration Statement
and the related Prospectus and (ii) reviewed the Registrant's Amended and
Restated Certificate of Incorporation and Bylaws, as amended, and such other
documents, records, certificates, memoranda and other instruments as we deem
necessary as a basis for this opinion. We also have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the Plan, the
Registration Statement and the related Prospectus, will be validly issued, fully
paid and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward llp
By: /s/ James H. Carroll
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James H. Carroll
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 24, 1998, which appears in
the Registration Statement on Form S-1 of Evolving Systems, Inc. for the year
ended December 31, 1997.
/s/ PRICEWATERHOUSECOOPERS LLP
PRICEWATERHOUSECOOPERS LLP
Broomfield, Colorado
August 3, 1998
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Evolving Systems, Inc. on Form S-8 of our report dated March 4, 1997, except for
Note 7, as to which the date is February 10, 1998, appearing in Amendment No. 4
to Registration Statement No. 333-43973 of Evolving Systems, Inc.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Denver, Colorado
August 4, 1998
