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As filed with the Securities and Exchange Commission on February 18, 2000
Registration No. 333-______
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UNITED STATES
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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MOMENTUM BUSINESS APPLICATIONS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 94-3313175
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
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4301 HACIENDA DRIVE, SUITE 410
PLEASANTON, CALIFORNIA 94588
(Address of principal executive offices) (Zip Code)
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MOMENTUM BUSINESS APPLICATIONS, INC. 1999 STOCK INCENTIVE PLAN
(Full title of the Plan)
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RONALD E. F. CODD
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MOMENTUM BUSINESS APPLICATIONS, INC.
4301 HACIENDA DRIVE, SUITE 410
PLEASANTON, CALIFORNIA 94588
(Name and address of agent for service)
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(Telephone number, including area code, of agent for service)
(925) 469-6621
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share (2) Price (2) Fee
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<S> <C> <C> <C> <C>
Options 225,000 N/A N/A N/A
Common Stock (par value $.001) 225,000 $7.8125 $1,757,812.50 $464.06
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1999 Stock Incentive Plan by
reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the outstanding shares of Common
Stock of Momentum Business Applications, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low prices per share of Common Stock of Momentum Business Applications,
Inc. on February 16, 2000 as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Momentum Business Applications, Inc. (the "Registrant") hereby incorporates
by reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
April 30, 1999,
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), since
the end of the fiscal year covered by the registrant document referred
to in (a) above, and
(c) The description of the Registrant's outstanding Common Stock contained
in the Registrant's Registration Statement No. 0-25185 on Form 8-A
filed with the SEC on December 18, 1998, pursuant to Section 12 of the
1934 Act, including any amendment or report filed for the purpose of
updating such description.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law authorizes a court to
award or a corporation's Board of Directors to grant indemnification to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the 1933 Act. The
Registrant's Bylaws provide for mandatory indemnification of its directors and
officers and permissible indemnification of employees and other agents to the
maximum extent permitted by the Delaware General Corporation Law. The
Registrant's Certificate of Incorporation provides that, pursuant to Delaware
law, its directors shall not be liable for monetary damages for breach of their
fiduciary duty as directors to the Registrant and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the fiduciary
duty of the directors, 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 actions leading to improper personal benefit to
the director and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws. The Registrant has
entered into Indemnification Agreements with its officers and directors. The
Indemnification
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Agreements provide the Registrant's officers and directors with further
indemnification to the maximum extent permitted by the Delaware General
Corporation Law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 333-67363 on Form 8-A, which is
incorporated herein by reference pursuant to Item 3(b) of this Registration
Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, is
contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
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Item 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 (i) to include any prospectus required by Section
10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
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 SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in this Registration
Statement; (2) that for the purpose of determining any liability under the 1933
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 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 Registrant's 1999 Stock Incentive Plan.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference in this 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 1933 Act
may be permitted to directors, officers or controlling persons of the Registrant
pursuant to the indemnification provisions summarized in Item 6 or otherwise,
the Registrant has been advised that, in the opinion of the SEC, such
indemnification is against public policy as expressed in the 1933 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 1933 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, as amended, 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 Pleasanton, State of California, on this 18th day of
February, 2000.
MOMENTUM BUSINESS APPLICATIONS, INC.
By: /s/ Ronald E. F. Codd
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Ronald E. F. Codd
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Momentum Business
Applications, Inc., a Delaware corporation, do hereby constitute and appoint
Ronald E. F. Codd and Robert K. Daal, and either of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys and
agents, and either one of them, determine may be necessary or advisable or
required to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules or regulations or requirements of the Securities and
Exchange Commission in connection with this Registration Statement. Without
limiting the generality of the foregoing power and authority, the powers granted
include the power and authority to sign the names of the undersigned officers
and directors in the capacities indicated below to this Registration Statement,
to any and all amendments, both pre-effective and post-effective, and
supplements to this Registration Statement, and to any and all instruments or
documents filed as part of or in conjunction with this Registration Statement or
amendments or supplements thereof, and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents, or either one of them, shall do
or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
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/s/ Ronald E. F. Codd President, Chief Executive Officer and February 18, 2000
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Ronald E. F. Codd Director
(Principal Executive Officer)
/s/ Robert K. Daal Vice President, Finance and February 18, 2000
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Robert K. Daal Chief Financial Officer
(Principal Financial and Accounting Officer)
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Signature Title Date
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<S> <C> <C>
/s/ Carlton H. Baab Director February 18, 2000
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Carlton H. Baab
/s/ Michael E. Gioja Director February 18, 2000
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Michael E. Gioja
/s/ Jeffrey A. Miller Director February 18, 2000
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Jeffrey A. Miller
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EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Instrument Defining Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 333-67363 on Form 8-A, which is
incorporated herein by reference pursuant to Item 3(b) of this Registration
Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP, is
contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
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Exhibit 5
February 18, 2000
Momentum Business Applications, Inc.
4301 Hacienda Drive, Suite 410
Pleasanton, California 94588
Re: Momentum Business Applications, Inc. Registration Statement
for Offering of 225,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of 225,000 shares of Common Stock
under the Company's 1999 Stock Incentive Plan. We advise you that, in our
opinion, when such shares have been issued and sold pursuant to the applicable
provisions of the 1999 Stock Incentive Plan in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
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Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Momentum Business Applications, Inc. 1999 Stock
Incentive Plan, of our report dated May 21, 1999 with respect to the financial
statements of Momentum Business Applications, Inc. included in its Annual Report
(Form 10-K) for the year ended April 30, 1999 filed with the Securities and
Exchange Commission.
San Jose Ernst & Young LLP
February 18, 2000
/s/ Ernst & Young LLP
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