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As filed with the Securities and Exchange Commission on August 15, 2000
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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CALDERA SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0617393
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
240 West Center Street
Orem, Utah 84057
Telephone: (801) 765-4999
(Address of Principal Executive Offices,
including Zip Code)
CALDERA SYSTEMS, INC. 1998 STOCK OPTION PLAN
AND
CALDERA SYSTEMS, INC. 1999 OMNIBUS STOCK INCENTIVE PLAN
AND
CALDERA SYSTEMS, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Ransom H. Love Copy to:
Chief Executive Officer Scott W. Loveless
Caldera Systems, Inc. Parr Waddoups Brown Gee & Loveless
240 West Center Street 185 South State Street, Suite 1300
Orem, Utah 84057 Salt Lake City, Utah 84111
(801) 765-4999 (801) 532-7840
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(2)
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<S> <C> <C> <C> <C>
1998 Stock Option Plan
- Options to Purchase Common Stock 3,252,088 N/A N/A N/A
- Common Stock, $0.001 par value 3,252,088 shares $6.875 $22,358,105 $5,903
---------------------------------- ----------------- ---------------- ----------------- ----------------
1999 Omnibus Stock Incentive Plan
- Options to Purchase Common Stock 6,405,238 N/A N/A N/A
- Common Stock, $0.001 par value 6,405,238 shares $6.875 $44,036,011 $11,626
---------------------------------- ----------------- ---------------- ----------------- ----------------
2000 Employee Stock Purchase Plan
- Common Stock, $0.001 par value 500,000 shares $6.875 $3,437,500 $908
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(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the 1998 Stock Option Plan, 1999 Omnibus
Stock Incentive Plan or 2000 Employee Stock Purchase 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 outstanding shares of Common Stock of Caldera Systems, 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 price per share of Common Stock of Caldera Systems, Inc. as reported
on the Nasdaq National Market on August 11, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Caldera Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are hereby
incorporated by reference in this Registration Statement:
(1) The Registrant's Prospectus filed with the SEC pursuant to Rule
424(b)(1) on March 21, 2000, in which there is set forth the
audited financial statements for the Registrant's fiscal year
ended October 31, 1999.
(2) The Registrant's Registration Statement No 000-29911 on Form
8-A12G filed with the SEC on March 10, 2000 in which there is set
forth the terms, rights and provisions applicable to the
Registrant's outstanding Common Stock.
(3) The Registrant's Quarterly Report on Form 10-Q, filed with the
SEC on June 13, 2000.
In addition, all documents subsequently 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 securities offered 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 a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so modified
or superseded.
The consolidated financial statements of Caldera Systems, Inc. dated as
of October 31, 1999 and 1998, and for each of the years then ended, have been
incorporated by reference herein in reliance upon the report of Arthur Andersen
LLP, independent public accountants, and upon the authority of said firm as
experts in accounting and auditing. Future financial statements of Caldera
Systems, Inc. and the reports thereon by Arthur Andersen LLP will be
incorporated by reference in this Registration Statement in reliance upon the
authority of that firm as experts in giving those reports; provided, however,
only to the extent that said firm has audited those financial statements and
consented to the use of their reports thereon.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our certificate of incorporation limits the liability of directors and
officers to the fullest extent permitted by the Delaware General Corporation
Law. In addition, our certificate of incorporation and bylaws provide that we
will indemnify our directors and officers to the fullest extent permitted by the
Delaware General Corporation Law. 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 (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended. We
intend to enter into separate indemnification agreements with our directors and
executive officers that provide them indemnification protection if our
certificate of incorporation is subsequently amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Regulation S-K Filed Incorporated
Exhibit No. Description Herewith By Reference
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<S> <C> <C> <C>
4.1 Amended and Restated Certificate of (1)
Incorporation
4.2 Amended and Restated Bylaws (1)
4.3 Specimen Common Stock certificate (1)
5 Opinion of Parr Waddoups Brown Gee & X
Loveless
23.1 Consent of Arthur Andersen LLP X
23.2 Consent of Parr Waddoups Brown Gee & X
Loveless (included in Exhibit No. 5).
24 Powers of Attorney (included on page 6 X
hereof).
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(1) Incorporated by reference to the Registration Statement on Form S-1
filed with the Commission on January 10, 2000, as amended by Amendment
No.1 to Registration Statement on Form S-1/A filed with the Commission
on February 25, 2000, Amendment No.2 to Registration Statement on Form
S-1/A filed with the Commission on March 9, 2000, Amendment No.3 to
Registration Statement on Form S-1/A filed with the Commission on March
14, 2000, Amendment No.4 to Registration Statement on Form S-1/A filed
with the Commission on March 16, 2000, and Amendment No.5 to
Registration Statement on Form S-1/A filed with the Commission on March
20, 2000.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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 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;
(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 paragraphs (a)(1)(i) and (a)(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 by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into this
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
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant'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 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.
(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Orem, State of Utah on this 31th day of July, 2000.
CALDERA SYSTEMS, INC.
By /s/ Ransom H. Love
---------------------------------
Ransom H. Love
President and Chief Executive
Officer
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Caldera Systems, Inc.
(the "Company"), hereby severally constitute and appoint Ransom H. Love, Chief
Executive Officer, and Alan Hansen, Chief Financial Officer, and each of them
individually, with full powers of substitution and resubstitution, our true and
lawful attorneys, with full powers to them and each of them to sign for us, in
our names and in the capacities indicated below, this Registration Statement on
Form S-8 filed with the Securities and Exchange Commission, and any and all
amendments to said registration statement (including post-effective amendments),
and any registration statement filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, in connection with the registration under
the Securities Act of 1933, as amended, of equity securities of the Company, and
to file or cause to be filed the same, with all exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys, and each of them, 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 each of them might
or could do in person, and hereby ratifying and confirming all that said
attorneys, and each of them, or their substitute or substitutes, shall do or
cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below:
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Ransom H. Love President, Chief
----------------------------------- Executive Officer and July 31, 2000
Ransom H. Love Director (principal
executive officer)
/s/ Alan Hansen Chief Financial Officer July 31, 2000
----------------------------------- (principal accounting
Alan Hansen and financial officer)
/s/ Ralph J. Yarro III Chairman of the Board of July 31, 2000
----------------------------------- Directors
Ralph J. Yarro III
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<S> <C> <C>
Director July 31, 2000
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Dale R. Boyd
/s/ John R. Egan Director July 31, 2000
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John R. Egan
/s/ Edward E. Iacobucci Director July 31, 2000
-----------------------------------
Edward E. Iacobucci
/s/ Raymond J. Noorda Director July 31, 2000
-----------------------------------
Raymond J. Noorda
/s/ Thomas P. Raimondi, Jr. Director July 31, 2000
-----------------------------------
Thomas P. Raimondi, Jr.
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CALDERA SYSTEMS, INC.
EXHIBIT INDEX
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Regulation S-K Filed Incorporated
Exhibit No. Description Herewith By Reference
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<S> <C> <C> <C>
4.1 Amended and Restated Certificate of (1)
Incorporation
4.2 Amended and Restated Bylaws (1)
4.3 Specimen Common Stock certificate (1)
5 Opinion of Parr Waddoups Brown Gee & X
Loveless
23.1 Consent of Arthur Andersen LLP X
23.2 Consent of Parr Waddoups Brown Gee & X
Loveless (included in Exhibit No. 5).
24 Powers of Attorney (included on page 6 X
hereof).
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(1) Incorporated by referenced to Registration Statement on Form S-1 filed with
the Commission on January 10, 2000, as amended by Amendment No.1 to
Registration Statement on Form S-1/A filed with the Commission on February
25, 2000, Amendment No.2 to Registration Statement on Form S-1/A filed with
the Commission on March 9, 2000, Amendment No.3 to Registration Statement on
Form S-1/A filed with the Commission on March 14, 2000, Amendment No.4 to
Registration Statement on Form S-1/A filed with the Commission on March 16,
2000, and Amendment No.5 to Registration Statement on Form S-1/A filed with
the Commission on March 20, 2000.
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