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Registration No. __________, Filed October 18, 1996
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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CONSILIUM, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 94-2523965
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
485 CLYDE AVENUE
MOUNTAIN VIEW, CA 94043
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(Address of principal executive offices) (Zip code)
CONSILIUM, INC.
TWO INDIVIDUAL STOCK OPTION AGREEMENTS
1993 STOCK OPTION PLAN
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(Full title of the plan)
LAURENCE R. HOOTNICK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CONSILIUM, INC.
485 CLYDE AVENUE
MOUNTAIN VIEW, CA 94043
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 691-6100
This registration statement, including all exhibits and attachments, contains
9 pages. The exhibit index may be found on page 7 of the consecutively
numbered pages of the registration statement.
This registration statement shall hereafter become effective in accordance
with Rule 462 promulgated under the Securities Act of 1933, as amended.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share/1/ price/1/ fee
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<S> <C> <C> <C> <C>
1993 Stock Option Plan
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Common Stock 256,060 $ 5.69 $1,456,981.40 $441.51
Par Value $0.01 143,940 $ 7.11 $1,023,413.40 $310.13
(including options to
purchase such common stock)
Two Individual Stock Option Agreements
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Common Stock 35,000 $ 6.00 $ 210,000.00 $ 63.64
Par Value $0.01 78,000 $ 5.69 $ 443,820.00 $134.49
(including options to
purchase such common stock)
Totals 513,000 $3,134,214.80 $949.77
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</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Consilium, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K/A filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended October 31, 1995 as filed with the Commission on
July 4, 1996 (File No. 0-17754).
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/1/ Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to the 143,940 shares under outstanding options under the
1993 Stock Option Plan, the $7.11 price is based upon the weighted average
exercise price. As to the 35,000 shares under one of the two individual stock
option agreements, the $6.00 price is based upon the exercise price. As to the
remaining shares, the $5.69 price is based upon the average of the high and low
prices of the Common Stock on October 11, 1996 as reported on the National
Association of Securities Dealers Automated Quotations System.
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(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-B filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All 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 to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in, and part
of, this registration statement from the date of filing of such documents.
Item 4. Description of Securities
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The class of securities offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Inapplicable.
Item 6. Indemnification of Directors and Officers
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Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While the
relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as injunction
or rescission. The statute has no effect on directors' duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, illegal payment of dividends and approval of any transaction
from which a director derives an improper personal benefit. The Company has
adopted provisions in its Certificate of Incorporation which eliminate the
personal liability of its directors to the Company and its stockholders for
monetary damages for breach or alleged breach of their duty of care. In
addition, the Company has entered into indemnification agreements with its
directors and executive officers. The Bylaws of the Company provide for
indemnification of its directors, officers, employees and agents to the full
extent permitted by the General Corporation Law of the State of Delaware, the
Company's state of incorporation, including those circumstances in which
indemnification would otherwise be discretionary under Delaware Law. Section 145
of the General Corporation Law of the State of Delaware provides for
indemnification in terms sufficiently broad to indemnify such individuals, under
certain circumstances, for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
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Inapplicable.
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Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) Rule 415 Offering
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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:
(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;
(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;
provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the
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registration statement is on Form S-3 or Form S-8, and 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 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 which remain unsold at the
termination of the offering.
(b) Filing incorporating subsequent Exchange Act documents by
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reference
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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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
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(h) Request for acceleration of effective date or filing of registration
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statement on Form S-8
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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.
SIGNATURE
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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 Mountain View, State of California, on October 14,
1996.
Consilium, Inc.
By: /s/ Laurence R. Hootnick
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Laurence R. Hootnick, President and
Chief Executive Officer
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POWER OF ATTORNEY
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The officers and directors of Consilium, Inc. whose signatures appear
below, hereby constitute and appoint Laurence R. Hootnick and Clifton Wong, and
each of them, their true and lawful attorneys and agents, with full power of
substitution, each with power to act alone, to sign and execute on behalf of the
undersigned any amendment or amendments to this registration statement on Form
S-8, and each of the undersigned does hereby ratify and confirm all that each of
said attorney and agent, or their or his substitutes, shall 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 by the following persons in the
capacities indicated on October 14, 1996.
Signature Title
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/s/ Laurence R. Hootnick
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Laurence R. Hootnick President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Clifton Wong
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Clifton Wong Vice President, Finance and Chief Financial
Officer (Principal Financial and Accounting
Officer)
/s/ Jonathan J. Golovin
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Jonathan J. Golovin Chairman of the Board of Directors and Chief
Technical Officer
/s/ Robert C. Fink
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Robert C. Fink Director
/s/ Robert Horne
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Robert Horne Director
/s/ Thomas A. Tomasetti
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Thomas A. Tomasetti Director
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EXHIBIT INDEX
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4.1. Certificate of Incorporation of the Company, as amended, is
incorporated by reference to Exhibit 3.1 to the Company's Form 10-Q
filed with the Securities and Exchange Commission for the quarter
ended April 30, 1993
4.2. Bylaws of the Company is incorporated by reference to Exhibit 3.2 to
the Company's Form 10-Q filed with the Securities and Exchange
Commission for the quarter ended April 30, 1993
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Independent Accountants
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE FREIDENRICH]
Attorneys at Law
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Tel (415) 328-6561
Fax (415) 327-3699
Our File No.
1030338-906001
October 16, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Consilium, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 513,000 shares of the
Common Stock, $.01 par value, of the Company which may be issued pursuant to the
exercise of options granted under the Consilium, Inc. 1993 Stock Option Plan
(the "Plan") and individual stock option grants outside of the Plan to Mr.
Bowman and Mr. Hootnick (the "Agreements").
We have examined all instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters
of Delaware corporation law, we have based our opinion solely upon our
examination of such laws and the rules and regulations of the authorities
administering such laws, all as reported in standard, unofficial compilations.
We have not obtained opinions of counsel licensed to practice in jurisdictions
other than the State of California.
Based on such examination, we are of the opinion that the 513,000 shares of
Common Stock which may be issued upon exercise of options granted under the Plan
and the Agreements are duly authorized shares of the Company's Common Stock,
and, when issued against receipt of the consideration therefor in accordance
with the provisions of the Plan and the Agreements, will be validly issued,
fully paid and nonassessable. We hereby consent to the filing of this opinion
as an exhibit to the Registration Statement referred to above and the use of our
name wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference of our reports dated December 6,
1995, except for Note 10, for which the date is December 15, 1995, Note 8, for
which the date is May 6, 1996, and Note 1, for which the date is June 11, 1996,
with respect to the financial statements and schedule of Consilium, Inc. for the
years ended October 31, 1995, included in the Annual Report (Form 10-K/A) for
1995, filed with the Securities and Exchange Commission, in the Registration
Statement on Form S-8 of Consilium, Inc. for the registration of 513,000 shares
of its common stock.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Jose, California
October 17, 1996
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