<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON ____________ , 1999
Registration No. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
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.)
----------------
9777 Mt. Pyramid Court
Englewood, Colorado 80112
----------------
(Address of Principal Executive Offices)
Amended and Restated Stock Option Plan
Employee Stock Purchase Plan
----------------
(Full Title of the Plan)
George A. Hallenbeck
President, Chief Executive Officer and
Chairman of the Board
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
----------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED SHARE (3) PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par 1,200,000(1) $ 5.04 $6,552,000 $1,822
value $.001) 100,000(2)
========================================================================================================================
</TABLE>
(1) Increase in authorized number of shares underlying the Amended and Restated
Stock Option Plan.
(2) Increase in authorized number of shares underlying the Employee Stock
Purchase Plan.
(3) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rules 457(c) and (h)(1) based upon the average
of the high and low prices of the Registrant's Common Stock on
June , 1999, as reported on The Nasdaq Stock Market (National Market).
===============================================================================
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
<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 Annual Report on Form 10-K (File No. 000-24081) for
the fiscal year ended December 31, 1998.
(b) The Registrant's Form 8-K (File No. 000-24081), filed March 3, 1999,
relating to the adoption of a Rights Plan.
(c) 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.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A.
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 of 1933, as amended (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.
1.
<PAGE>
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.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
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)).
4.4 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 99.3 to
the Registrant's Form 8-K related to adoption of a Rights
Plan (Registration No. 000-24081)).
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).
10.2 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.3 to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-43973)).
23.1 Consent of PriceWaterhouseCoopers LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on page 4).
99.1 Officer's Certificate.
2.
<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.
3.
<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 30th day of
June, 1999.
EVOLVING SYSTEMS, INC.
By: /s/ George A. Hallenbeck
-------------------------
George A. Hallenbeck
President, 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 George A. Hallenbeck 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/ George A. Hallenbeck President, Chief Executive Officer and June 30, 1999
- ---------------------------------------- Chairman of the Board (Principal Executive
George A. Hallenbeck Officer)
/s/ David R. Johnson Senior Vice President of Finance, Chief June 30, 1999
- ---------------------------------------- Financial Officer and Treasurer (Principal
David R. Johnson Financial and Accounting Officer)
/s/ Donald R. Dixon Director June 30, 1999
- ----------------------------------------
Donald R. Dixon
/s/ Harry B. Fair Director June 28, 1999
- ----------------------------------------
Harry B. Fair
/s/ Robert J. Loarie Director June 28, 1999
- ----------------------------------------
Robert J. Loarie
/s/ David J. Molny Director June 30, 1999
- ----------------------------------------
David J. Molny
</TABLE>
4.
<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)).
4.4 Certificate of Designation of Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 99.3 to
the Registrant's Form 8-K related to adoption of a Rights
Plan (Registration No. 000-24081)).
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).
10.2 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.3 to the Registrant's Registration Statement on
Form S-1 (Registration No. 333-43973)).
23.1 Consent of PriceWaterhouseCoopers LLP.
23.2 Consent of Cooley Godward LLP (included in Exhibit 5.1).
24 Power of Attorney (included on page 4).
99.1 Officer's Certificate.
<PAGE>
EXHIBIT 5.1
[Letterhead of Cooley Godward LLP appears here]
July 8, 1999
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 1,300,000 shares of the
Registrant's Common Stock, $.001 par value, pursuant to the Registrant's Amended
and Restated Stock Option Plan and Employee Stock Option Purchase Plan (the
"Plans") (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 Plans, 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:
---------------------------
Rex R. O'Neal
<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 March 26, 1999, relating to the
Financial Statements, which appears in the Form 10-K of Evolving Systems, Inc.
for the year ended December 31, 1998.
_______________________________________________
PRICEWATERHOUSECOOPERS LLP
Broomfield, Colorado
July 7, 1999
<PAGE>
EXHIBIT 99.1
EVOLVING SYSTEMS, INC.
OFFICER'S CERTIFICATE
Anita T. Moseley hereby certifies that she is the duly elected, qualified
and acting Vice President of Legal Services, General Counsel and Secretary of
Evolving Systems, Inc., a Delaware corporation (the "Company"), and hereby
further certifies as follows:
1. This Certificate is made with the knowledge that the Company's counsel,
Cooley Godward LLP ("Counsel"), will rely on it in rendering an opinion in
connection with the Company's filing of a Registration Statement on Form S-8
with the Securities and Exchange Commission with respect to 1,300,000 shares of
the Company's Common Stock issuable under the Amended and Restated Stock Option
Plan and Employee Stock Purchase Plan of the Company (the "Plans"). As used
herein, the term "Board" includes the Company's Board of Directors and all
committees thereof.
2. True and complete copies of all minutes and written consents of the
Company's stockholders (the "Stockholders") and Board have been either delivered
to or prepared by Counsel, and no actions have been taken by the Board or the
Stockholders other than as reflected therein.
3. The resolutions adopted by the Board on February 23, 1999 and by the
Stockholders on April 30, 1999, approving increases in the authorized shares
under the Plans, remain in full force and effect, without change, on the date
hereof.
4. No corporate document has been filed by the Company with the Delaware
Secretary of State since March 1, 1999.
5. No proceeding for the merger, consolidation, sale of assets or
business, liquidation or dissolution of the Company has been commenced, and no
such proceeding is contemplated.
6. The Company has not issued any shares of capital stock other than as
authorized by the Board.
7. There are no options, warrants or other rights, or any agreements
with respect thereto, to purchase any of the Company's authorized and unissued
capital stock, other than (i) purchase rights outstanding under the Plans and
(ii) warrants to purchase an aggregate of 910,633 shares of the Company's Common
Stock.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the 7th day of July, 1999.
-------------------------------
Anita T. Moseley
Vice President of Legal Services, General
Counsel and Secretary
