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As filed with the Securities and Exchange Commission on December 8, 1999
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
Preview Systems, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 77-0485517
(State of incorporation) (I.R.S. Employer
Identification No.)
1601 South DeAnza Boulevard, Suite 100
Cupertino, California 95014
(Address of principal executive offices)
_______________________
1998 Stock Option Plan
1999 Executive Stock Option Plan
1999 Employee Stock Purchase Plan
1999 Directors' Stock Option Plan
Preview Software New 1997 Stock Option Plan
Preview Software 1997 Stock Option Plan
Portland Software Amended & Restated 1994 Stock Incentive Plan
Individual Nonstatutory Options
Individual Preview Software Nonstatutory Options
(Full title of the Plans)
_______________________
Vincent Pluvinage
President and Chief Executive Officer
Preview Systems, Inc.
1601 South DeAnza Boulevard, Suite 100
Cupertino, California 95014
408 873-3450
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Tom Tobiason
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Amount Maximum Maximum Amount of
to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1998 Stock Option Plan
Common Stock,
$0.0002 par value......................... 1,669,795 Shares $ 5.46(3) $ 9,117,080.70 $ 2,406.91
Common Stock,
$0.0002 par value......................... 1,180,205 Shares $21.00(4) $24,784,305.00 $ 6,543.06
1999 Executive Stock Option Plan
Common Stock,
$0.0002 par value......................... 862,500 Shares $ 9.00(3) $ 7,762,500.00 $ 2,049.30
1999 Employee Stock Purchase Plan
Common Stock,
par value $0.0002 par value............... 500,000 Shares $17.85(2) $ 8,925,000.00 $ 2,356.20
1999 Directors' Stock Option Plan
Common Stock,
$0.0002 par value......................... 300,000 Shares $21.00(4) $ 6,300,000.00 $ 1,663.20
Preview Software New 1997 Stock Option Plan
Common Stock,
$0.0002 par value......................... 167,838 Shares $ 0.67(3) $ 112,451.46 $ 29.69
Preview Software 1997 Stock Option Plan
Common Stock,
$0.0002 par value......................... 105,625 Shares $ 0.50(3) $ 52,812.50 $ 13.94
Portland Software Amended & Restated 1994
Stock Incentive Plan Common Stock,
$0.0002 par value......................... 380,850 Shares $ 1.40(3) $ 533,190.00 $ 140.76
Individual Preview Software Non-Statutory
Options Common Stock,
$0.0002 par value......................... 25,000 Shares $ 0.50(3) $ 12,500.00 $ 3.30
Individual Nonstatutory Options
Common Stock,
$0.0002 par value......................... 39,187 Shares $ 7.50(3) $ 293,902.50 $ 77.59
TOTAL 5,231,000 Shares $57,893,742.16 $15,283.95
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</TABLE>
_______________
(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
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registration fee. The computation is based upon the average of the high and
low sale prices of the Common Stock as reported on The Nasdaq National
Market on December 7, 1999, multiplied by 85%, which is the percentage of
the trading purchase price applicable to purchases under the referenced
Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
(4) 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 high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
December 7, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
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(a) The Registrant's Prospectus filed on December 8, 1999 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(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
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December 1, 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.
2
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Item 4. Description of Securities. Not applicable.
-------------------------
Item 5. Interests of Named Experts and Counsel. Not applicable.
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Item 6. Indemnification of Directors and Officers.
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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 Arthur Andersen LLP.
24.1 Powers of Attorney (see p. 6).
______________
3
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Item 9. Undertakings.
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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]
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Preview Systems, 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 Cupertino, State of California, on this 8th Day
of December, 1999.
PREVIEW SYSTEMS, INC.
By: /s/ Vincent Pluvinage
----------------------------
Vincent Pluvinage
President & 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 Vincent Pluvinage and G. Bradford Solso,
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Vincent Pluvinage President, Chief Executive Officer and December 8, 1999
- ------------------------- Director (Principal Executive Officer)
Vincent Pluvinage
/s/ G. Bradford Solso Chief Financial Officer (Principal December 8, 1999
- ------------------------ Financial and Accounting Officer)
G. Bradford Solso
/s/ Gerard H. Langeler Chairman of the Board of Directors December 8, 1999
- ------------------------
Gerard H. Langeler
/s/ Bruce R. Bourbon Director December 8, 1999
- ------------------------
Bruce R. Bourbon
/s/ Donald L. Lucas Director December 8, 1999
- ------------------------
Donald L. Lucas
Director
- ------------------------
Gary E. Rieschel
/s/ R. Douglas Rivers Director December 8, 1999
- ------------------------
R. Douglas Rivers
/s/ Jo Ann Heidi Roizen Director December 8, 1999
- ------------------------
Jo Ann Heidi Roizen
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number
------
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 Arthur Andersen LLP.
24.1 Powers of Attorney (see p. 6).
7
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EXHIBIT 5.1
December 8, 1999
Preview Systems, Inc.
1601 South DeAnza Boulevard
Suite 100
Cupertino, CA 95014
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
------------
Statement") filed by you with the Securities and Exchange Commission (the
- ---------
"Commission") on December 8, 1999 in connection with the registration under the
- -----------
Securities Act of 1933, as amended, of a total of 5,231,000 shares of your
Common Stock (the "Shares") reserved for issuance under the 1998 Stock Option
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Plan, 1999 Executive Stock Option Plan, 1999 Employee Stock Purchase Plan, 1999
Directors' Stock Option Plan, Preview Software New 1997 Stock Option Plan,
Preview Software 1997 Stock Option Plan, Portland Software Amended & Restated
1994 Stock Incentive Plan, Individual Nonstatutory Options, and Individual
Preview Software Nonstatututory Options. As your counsel in connection with
this transaction, we have examined the proceedings taken and are familiar with
the proceedings proposed to be taken by you in connection with the sale and
issuance of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement will be legally and validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
April 2, 1999 (except as to the matters discussed in Note 12 to the financial
statements, as to which the date is December 2, 1999), included in Preview
Systems, Inc.'s Form S-1/A (Registration No. 333-87181) and to all references to
our firm included in this Registration Statement.
Portland, Oregon /s/ Arthur Andersen LLP
December 2, 1999
