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As filed with the Securities and Exchange Commission on June 18, 1999
Registration No. 333-______
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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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ESPS, INC.
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
Delaware 24-2845135
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation of organization)
</TABLE>
1300 Virginia Drive, Suite 125
Ft. Washington, Pennsylvania 19034
(Address of principal executive offices)
Electronic Submission Publishing Systems, Inc.
1995 Stock Incentive Plan
ESPS, Inc. Employee Stock Purchase Plan
(Full title of the plans)
Terrence P. Brennan
President and Chief Executive Officer
ESPS, Inc.
1300 Virginia Drive, Suite 125
Ft. Washington, Pennsylvania 19034
(Name and address of agent for service)
(215) 619-6000
(Telephone number, including area code, of agent for service)
-----------------------
Copy to:
James W. McKenzie, Jr., Esq.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(215) 963-4852
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of securities Number of Proposed maximum Proposed maximum
to be shares to be offering price aggregate Amount of
registered registered (1) per share offering price (4) registration fee (5)
<S> <C> <C> <C> <C>
Common stock, 7,070,170 (2) (3) (4) $28,953,207 $8,049.00
$0.001 par value
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</TABLE>
(1) This registration statement covers shares of common stock of ESPS, Inc.
which may be offered or sold pursuant to the Electronic Submission
Publishing Systems, Inc. 1995 Stock Incentive Plan and the ESPS, Inc.
Employee Stock Purchase Plan. Pursuant to Rule 457(h)(2), no separate
registration fee is required with respect to the interests in the plans.
This registration statement also relates to an indeterminate number of
shares of common stock that may be issued upon stock splits, stock
dividends or similar transactions in accordance with Rule 416.
(2) Represents 6,720,170 shares of Common Stock of ESPS, Inc. which may be
offered or sold pursuant to the Electronic Submission Publishing Systems,
Inc. 1995 Stock Incentive Plan.
(3) Represents 350,000 shares of Common Stock of ESPS, Inc. which may be
offered or sold pursuant to the ESPS, Inc. Employee Stock Purchase Plan.
(4) With respect to awards that have been previously been issued under the
Electronic Submission Publishing Systems, Inc. 1995 Stock Incentive Plan,
the actual offering price has been used to compute the maximum offering
price pursuant to Rule 457(h)(1). For the remaining shares of Common Stock
of ESPS, Inc. issuable under the Electronic Submission Publishing Systems,
Inc. 1995 Incentive Stock Plan and the ESPS, Inc. Employee Stock Purchase
Plan, information regarding the fluctuating market prices under Rule 457(c)
was unavailable at the date of filing of this Registration Statement as the
shares were not yet publicly traded. Therefore, the maximum offering price
for these shares is based on a bona fide estimate ($7.50) pursuant to Rule
457(a).
(5) Calculated pursuant to Section 6(b) as follows: proposed maximum aggregate
offering price multiplied by .000278.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by ESPS, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission"), are incorporated by
reference in this Registration Statement and made a part hereof:
(a) The prospectus dated June 16, 1999, filed under Rule 424(b) as part of
the Company's registration statement on Form S-1 (Registration No. 333-
75397) which initiates the consolidated financial statements and schedule
of ESPS, Inc. as of March 31, 1998 and 1999 and for each of the three years
in the period ended March 31, 1999.
(b) The description of the Common Stock of the Company contained in a
registration statement filed on Form 8-A under the Securities and Exchange
Act (the "Exchange Act") filed on June 3, 1999, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company 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 herein and to be part hereof from the
date of filing of such documents. Any statement contained in any document, all
or a portion of which is incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained or incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
II-1
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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, indemnity 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 Securities Act. The Company's Certificate of
Incorporation and By-laws provide for indemnification of its directors,
officers, employees and other agents to the maximum extent permitted by the
Delaware General Corporation Law. The Company has also purchased and maintained
insurance for its officers, directors, employees or agents against liabilities
which an officer, a director, an employee or an agent may incur in his capacity
as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibit
Number Exhibit
------ -------
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Morgan, Lewis & Bockius LLP (included within
Exhibit 5.1).
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
Securities Act of 1933;
(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; and
(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;
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Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by the Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 that remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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 Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
II-3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant 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 Ft. Washington, Pennsylvania on June 17, 1999.
ESPS, INC.
By: /s/ Terrence P. Brennan
------------------------------------------
Terrence P. Brennan
President and Chief Executive Officer
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints Terrace P. Brennan and Leonard W. von Vital or
either of them acting alone, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and revocation, for him or her and in his
or her 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 other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents, full power and authority to do and perform
each and every act and thing requisite and necessary to be done as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or this or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
- ---------------------------- --------------------------------- -------------
<S> <C> <C>
/s/ Terrence P. Brennan
- ---------------------------- President and Chief Executive June 17, 1999
Terrence P. Brennan Officer (principal executive
officer)
/s/ Leonard W. von Vital
- ---------------------------- Chief Financial Officer June 17, 1999
(principal financial officer and
Leonard W. von Vital accounting officer)
/s/Charles O. Heller
- ---------------------------- Director June 17, 1999
Charles O. Heller
/s/Christopher B. Hollenbeck
- ---------------------------- Director June 17, 1999
Christopher B. Hollenbeck
/s/Michael J. Egan
- ---------------------------- Director June 17, 1999
Michael J. Egan
</TABLE>
S-1
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ESPS, INC.
INDEX TO EXHIBITS
Exhibit Number Document
- ---------------- --------
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Ernst & Young LLP.
23.3 Consent of Morgan, Lewis & Bockius LLP
(included with Exhibit 5.1).
<PAGE>
EXHIBIT 5.1
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
ESPS. Inc.
1300 Virginia Drive
Suite 125
Ft. Washington, Pennsylvania 19034
Re: ESPS, Inc.- Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to ESPS, Inc., a Delaware corporation (the "Company"),
in connection with the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Act"), relating to the
registration of up to 7,070,170 shares of Common Stock, $0.001 par value (the
"Shares"), of the Company to be issued in connection with the Electronic
Submission Publishing Systems, Inc. 1995 Stock Incentive Plan and the ESPS, Inc.
Employee Stock Purchase Plan (the "Plans"). In rendering the opinion set forth
below, we have reviewed (a) the Registration Statement; (b) the Company's
Amended and Restated Articles of Incorporation and Amended and Restated Bylaws;
(c) certain records of the Company's corporate proceedings as reflected in its
minute books; (d) the Plans; and (e) such records, documents, statutes and
decisions as we have deemed relevant. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original of all documents submitted to
us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares will, when
issued in the manner and on the terms described in the Plans, be duly
authorized, validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration
Statement. In giving such opinion, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules or regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/Morgan, Lewis & Bockius LLP
- ------------------------------
Morgan, Lewis & Bockius LLP
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference of our report dated April 28, 1999,
except as to Note 13, as to which the date is June 15, 1999, with respect to the
financial statements of ESPS, Inc. in the Registration Statement
(Form S-8 No. 333- ) pertaining to the 1995 Stock Incentive and the Employee
Stock Purchase Plans of ESPS, Inc. included in its Registration Statement on
Form S-1 and related Prospectus of ESPS, Inc. dated June 16, 1999, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
June 17, 1999
