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Registration No.___________
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.
(Exact name of registrant as specified in its charter)
Delaware 94-2523965
- ---------------------------------- ------------------------------------
(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.
1996 Stock Option Plan
and Individual Stock Option Agreement
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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.
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This registration statement, including all exhibits and attachments, contains 10
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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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price per aggregate offering Amount of
be registered(1) registered share(2) price(2) registration fee
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<S> <C> <C> <C> <C>
1996 Stock Option Plan
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Common Stock 1,557,642 $3.4309 $5,344,113.94
Par Value $0.01 227,072 $4.875 $1,106,976.00
Individual Stock Option Agreement
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Common Stock 25,000 $2.625 $65,625.00
Par Value $0.01
TOTALS 1,809,714 $6,516,714.94 $1,974.76
</TABLE>
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(1) The securities to be registered include options and rights to acquire such
Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the 1996 Stock Option Plan, the price is based upon the
weighted average exercise price. As to the remaining shares under the 1996
Stock Option Plan, the price is based upon the average of the high and low
prices of the Common Stock on May 22, 1997 as reported on the National
Association of Securities Dealers Automated Quotations System. As to the
25,000 shares under the individual stock option agreement, the price is
based upon the exercise price.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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 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, 1996 as filed with the Commission on
January 30, 1997 (File No. 0-17754).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (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 this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
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The class of securities to be 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. The Bylaws of the Company provide for indemnification of its
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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.
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
- -------- -------
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.
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(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.
(h) Request for acceleration of effective date or filing of
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registration 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
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 May 29,
1997.
Consilium, Inc.
By: /s/ Laurence R. Hootnick
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Laurence R. Hootnick,
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
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 May 29, 1997.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Laurence R. Hootnick President, Chief Executive Officer, and Director
- --------------------------------- (Principal Executive Officer)
Laurence R. Hootnick
/s/ Clifton Wong Vice President, Finance and Chief Financial Officer
- --------------------------------- (Principal Financial and Accounting Officer)
Clifton Wong
/s/ Robert C. Fink Director
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Robert C. Fink
/s/ Jonathan J. Golovin Director
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Jonathan J. Golovin
/s/ Thomas Tomasetti Director
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Thomas Tomasetti
Director
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Robert Horne
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Numbered Page
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<C> <S> <C>
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 are 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 8
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Arthur Andersen LLP 9
23.3 Consent of Coopers & Lybrand L.L.P. 10
24 Power of Attorney (included in signature pages to this --
registration statement)
</TABLE>
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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
http://www.gcwf.com
May 29, 1997
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 1,809,714 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of options granted under the Consilium, Inc. 1996 Stock Option Plan
(the "Plan") and an individual stock option grant outside of the Plan to Mr.
Laurence R. Hootnick (the "Agreement").
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 1,809,714
shares of Common Stock which may be issued upon exercise of options granted
under the Plan and the Agreement 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 Agreement, 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.
Very truly yours,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated December 4, 1996,
except with respect to the matter discussed in Note 11, as to which date is
January 28, 1997, included in Consilium, Inc.'s Form 10-K for the year ended
October 31, 1996 and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
San Jose, California
May 29, 1997
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference of our reports dated December 6,
1995, except for Note 9, for which the date is May 6, 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) for 1996, filed with the
Securities and Exchange Commission, in the Registration Statement on Form S-8 of
Consilium, Inc. for the registration of 1,809,714 shares of its common stock.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Jose, California
May 29, 1997
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