<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 28, 1998
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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WALL DATA INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
WASHINGTON 91-1189299
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
11332 N.E. 122ND WAY
KIRKLAND, WASHINGTON 98034-6931
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
WALL DATA INCORPORATED
1994 NONOFFICER STOCK OPTION PLAN AS
AMENDED AND RESTATED ON OCTOBER 15, 1996
(FULL TITLE OF THE PLAN)
JOHN R. WALL
PRESIDENT AND CHIEF EXECUTIVE OFFICER
11332 N.E. 122ND WAY
KIRKLAND, WASHINGTON 98034-6931
(425) 814-9255
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
L. MICHELLE WILSON
PERKINS COIE
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES NUMBER TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED (1) REGISTERED (2) PER SHARE(3) PRICE(3) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value 260,000 $13.69 $3,559,400 $1,051
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(1) Including the associated Preferred Stock Purchase Rights.
(2) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
such plans as the result of any future stock split, stock dividend or
similar adjustment of the outstanding Common Stock of the Registrant.
(3) Estimated solely for the purpose of calculating the registration fee. The
price per share is estimated to be $13.69 based on the average of the high
($13.875) and low ($13.50) sales prices for the Common Stock in the
over-the-counter market on July 24, 1998 as reported on the Nasdaq National
Market.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997 filed with the Securities and Exchange Commission (the
"Commission") on March 26, 1998;
(b) The Registrant's Transition Report on Form 10-K for the four-month
period ended April 30, 1998 filed with the Commission on July 27, 1998;
(c) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on February 3, 1993
under Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as amended by the Form 8 filed with the Commission on March 8,
1993, and the description of the Registrant's Preferred Stock Purchase Rights
contained in the Registration Statement on Form 8-A filed with the Commission on
July 20, 1995 under Section 12(g) of the Exchange Act; and
(d) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Exchange Act since the fiscal year covered by the Form 10-K
referred to in (a) above.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment, which indicates that the securities
offered hereby have been sold or which deregisters the securities covered hereby
then remaining unsold, shall also be deemed to be incorporated by reference into
this Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act"). Section 10 of the Registrant's Bylaws provides for
indemnification of the Registrant's directors, officers, employees and agents to
the maximum extent permitted by Washington law.
Section 23B.08.320 of the Washington Business Corporation Act
authorizes a corporation to limit a director's liability to the corporation or
its shareholders for monetary damages for acts or omissions as a director,
except in certain circumstances involving intentional misconduct, self-dealing
or illegal corporate loans or distributions, or any transactions from which the
director personally receives a benefit in money, property or services to which
the director is not entitled. Article 11 of the Registrant's Restated Articles
of Incorporation contains provisions implementing, to the fullest extent
permitted by Washington law, such limitations on a director's liability to the
Registrant and its shareholders.
The Registrant has also entered into indemnification agreements
pursuant to which it has agreed, among other things, to indemnify its directors
and officers against certain liabilities.
Item 8. EXHIBITS
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<CAPTION>
Exhibit
Number Description
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<S> <C>
5.1 Opinion of Perkins Coie
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
</TABLE>
II-1
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<TABLE>
<CAPTION>
<S> <C>
99.1 Wall Data Incorporated 1994 Nonofficer Stock Option Plan As Amended
And Restated On October 15, 1996 (Incorporated by reference to the
Registrant's Registration Statement on Form S-8 filed November 7,
1996)
99.2 Amendments No. 1 and No. 2, dated October 28, 1997 and January
23,1998, respectively, to the Wall Data Incorporated 1994 Nonofficer
Stock Option Plan As Amended And Restated On October 15, 1996
(Incorporated by reference to the Registrant's Registration
Statement on Form S-8 filed March 27, 1998)
99.3 Amendment No. 3, dated June 30,1998, to the Wall Data Incorporated
1994 Nonofficer Stock Option Plan As Amended And Restated On October
15, 1996
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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 Securities 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 paragraphs (1)(i) and (1)(ii) above 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 Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amend ment 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange 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 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 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 Securities 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 Kirkland, State of Washington, on July 24, 1998.
WALL DATA INCORPORATED
By /s/ John R. Wall
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John R. Wall
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
John R. Wall, Kevin B. Vitale and Craig E. Shank and each of them as
attorneys-in-fact, with full power of substitution, to execute in the name and
on behalf of such person, individually and in each capacity stated below, and to
file, any and all amendments to this Registration Statement, including any and
all post-effective amendments.
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 indicated on July 24, 1998.
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<CAPTION>
Signature Title
<S> <C>
/s/ John R. Wall President and Chief Executive
- ----------------------------------------- Officer (Principal Executive Officer)
John R. Wall
/s/ Kevin B. Vitale Chief Operating Officer and
- ----------------------------------------- Director
Kevin B. Vitale
/s/ Richard P. Fox Chief Financial Officer
- ----------------------------------------- (Principal Financial Officer and
Richard P. Fox Principal Accounting Officer)
/s/ Robert J. Frankenberg Director and Chairman of the
- ----------------------------------------- Board
Robert J. Frankenberg
/s/ Jeffrey A. Heimbuck Director
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Jeffrey A. Heimbuck
/s/ Henry N. Lewis Director
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Henry N. Lewis
/s/ David F. Millet Director
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David F. Millet
/s/ Steve Sarich, Jr. Director
- -----------------------------------------
Steve Sarich, Jr.
/s/ Bettie A. Steiger Director
- -----------------------------------------
Bettie A. Steiger
</TABLE>
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<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
5.1 Opinion of Perkins Coie
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Perkins Coie (included in opinion filed as Exhibit
5.1)
24.1 Power of Attorney (see signature page)
99.1 Wall Data Incorporated 1994 Nonofficer Stock Option Plan As
Amended And Restated On October 15, 1996 (Incorporated by
reference to the Registrant's Registration Statement on Form S-8
filed November 7, 1996)
99.2 Amendments No 1 and No. 2, dated October 28, 1997 and January
23,1998, respectively, to the Wall Data Incorporated 1994
Nonofficer Stock Option Plan As Amended And Restated On October
15, 1996 (Incorporated by reference to the Registrant's
Registration Statement on Form S-8 filed March 27, 1998)
99.3 Amendment No. 3, dated June 30,1998, to the Wall Data
Incorporated 1994 Nonofficer Stock Option Plan As Amended And
Restated On October 15, 1996
</TABLE>
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Exhibit 5.1
PERKINS COIE LLP
1201 THIRD AVENUE, 40TH FLOOR SEATTLE, WASHINGTON 98101-3099
TELEPHONE: 206 583-8888 FACSIMILE: 206 583-8500
July 24, 1998
Wall Data Incorporated
11332 N.E. 122nd Way
Kirkland, WA 98034-6931
RE: 260,000 SHARES OF COMMON STOCK (NO PAR VALUE) OF
WALL DATA INCORPORATED (THE "COMPANY")
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Act"), which you are filing with
the Securities and Exchange Commission with respect to 260,000 shares of Common
Stock, no par value (the "Shares"), of Wall Data Incorporated (the "Company"),
which are to be issued pursuant to the Company's 1994 Nonofficer Stock Option
Plan As Amended and Restated on October 15, 1996 (the "Nonofficer Plan").
We have examined the Registration Statement and such other documents
and records of the Company as we have deemed relevant and necessary for the
purposes of this opinion. In giving this opinion, we are assuming the
authenticity of all instruments presented to us as originals, the conformity
with originals of all instruments presented to us as copies and the genuineness
of all signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that will be issued pursuant to the Plans, upon the due execution by the
Company and the registration by its registrar of the Shares and the issuance
thereof by the Company in accordance with the terms of the Plans, and the
receipt of consideration therefor in
<PAGE> 2
accordance with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
PERKINS COIE
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Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Wall Data Incorporated 1994 Nonofficer Stock Option Plan
as Amended and Restated on October 15, 1996 of our report dated May 18, 1998,
with respect to the consolidated financial statements and schedule of Wall Data
Incorporated included in the Form 10-K for the four months ended April 30, 1998
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Seattle, Washington
July 27, 1998
<PAGE> 1
EXHIBIT 99.3
AMENDMENT NO. 3 TO
WALL DATA INCORPORATED
1994 NONOFFICER STOCK OPTION PLAN
AS AMENDED AND RESTATED ON OCTOBER 15, 1996
The Wall Data Incorporated 1994 Nonofficer Stock Option Plan (the
"Plan") is amended as follows:
1. Section 3 of the Plan is amended to read as follows:
The stock subject to this Plan shall be the Company's Common Stock (the
"Common Stock") presently authorized but unissued or subsequently
acquired by the Company. Subject to adjustment as provided in Section 6,
the aggregate amount of Common Stock to be delivered upon the exercise
of all options granted under this Plan shall not exceed 1,435,000 shares
of Common Stock. If any option granted under this Plan shall expire or
be surrendered, exchanged for another option, cancelled or terminated
for any reason without having been exercised in full, the unpurchased
shares subject thereto shall thereupon again be available for purposes
of this Plan, including for replacement options which may be granted in
exchange for such expired, surrendered, exchanged, cancelled or
terminated options.
The date of the adoption of this Amendment No. 3 by the Board of
Directors of the Company is June 30, 1998. The effective date of this Amendment
No. 3 shall be June 30, 1998, the date of adoption by the Board of Directors.
