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As filed with the Securities and Exchange Commission on January 4, 2001.
Registration No. 333-76867
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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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PERSISTENCE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 94-3138935
(State of incorporation) (I.R.S. Employer Identification No.)
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1720 SOUTH AMPHLETT BLVD., THIRD FLOOR
SAN MATEO, CALIFORNIA 94402
(Address of principal executive offices)
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1999 EMPLOYEE STOCK PURCHASE PLAN
1997 STOCK PLAN
(Full title of the Plans)
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CHRISTOPHER T. KEENE
CHIEF EXECUTIVE OFFICER
PERSISTENCE SOFTWARE, INC.
1720 SOUTH AMPHLETT BLVD., THIRD FLOOR
SAN MATEO, CALIFORNIA 94402
(650) 372-3600
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Laurel Finch
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
Page 1 of 9 Pages
Exhibit Index on Page 9
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed Maximum
Maximum Amount Maximum Aggregate Amount of
to be Offering Price Offering Price Registration
Title of Securities to be Registered Registered(1) Per Share Fee
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1999 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.001 par value......................... 1,192,697 Shares $3.613(2) $ 4,309,214.261 $1,077.30
1997 STOCK PLAN
Common Stock,
$0.001 par value......................... 4,200,000 Shares $4.250(3) $17,850,000 $4,462.50
TOTAL 5,392,697 Shares
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(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) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
registration fee. The computation is based on the average of the high and
low sale prices of the Common Stock as reported on The Nasdaq National
Market on January 4, 2001, multiplied by 85%, which is the percentage of
the trading purchase price applicable to purchases under the referenced
Plan.
(3) Estimated 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 average of the high and low
sale prices of the Common Stock as reported on The Nasdaq National Market
on January 2, 2001.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1999;
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2000, June 30, 2000 and September 30, 2000;
(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 April
23, 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.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. As of the date of this
Registration Statement, attorneys of Venture Law Group and an investment
partnership controlled by Venture Law Group beneficially own an aggregate of
6,551 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
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 page 6).
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Item 9. UNDERTAKINGS.
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 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Persistence Software, Inc., 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 San Mateo, State of California, on
this January 4, 2001.
PERSISTENCE SOFTWARE, INC.
By: /s/ CHRISTOPHER T. KEENE
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Christopher T. Keene
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Christopher T. Keene and Christine
Russell, jointly and severally, his or her attorneys-in-fact and agents, each
with the power of substitution and resubstitution, for him or her and in his or
her 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 or she might or
could do in person, and ratifying and confirming all that the attorneys-in-fact
and agents, or his or her 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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Signature Title Date
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Chief Executive Officer (Principal January 4, 2001
/s/ CHRISTOPHER T. KEENE Executive Officer) and Director
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Christopher T. Keene
/s/ CHRISTINE RUSSELL Chief Financial Officer (Principal January 4, 2001
------------------------------ Financial and Accounting Officer)
Christine Russell
/s/ GREGORY ENNIS Director January 4, 2001
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Gregory Ennis
/s/ JACK L. HANCOCK Director January 4, 2001
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Jack L. Hancock
/s/ MERRITT LUTZ Director January 4, 2001
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Merritt Lutz
/s/ JOSEPH P. ROEBUCK Director January 4, 2001
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Joseph P. Roebuck
Director
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Sanjay Vaswani
/s/ JEFFREY T. WEBBER Director January 4, 2001
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Jeffrey T. Webber
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INDEX TO 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 Independent Auditors' Consent.
24.1 Powers of Attorney (see page 6).
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