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As filed with the Securities & Exchange Commission on April 10, 1998
Registration No. 333-________________
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 of (I.R.S. employer identification no.)
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,
1989 Employee Stock Purchase Plan
and Amended and Restated 1990 Outside Directors 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: 650-691-6100
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
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Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price per aggregate offering Amount of
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 500,000 $3.21875 $1,609,375.00
Par Value $0.01
1989 Employee Stock Purchase Plan
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Common Stock 300,000 $ 2.736 $ 820,800.00
Par Value $0.01
Amended and Restated 1990 Outside
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Directors Stock Option Plan
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Common Stock 50,000 $3.21875 $ 160,937.50
Par Value $0.01
TOTAL 850,000 $2,591,112.50 $764.38
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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 issuable under the 1996 Stock Option Plan and
the Amended and Restated 1990 Outside Directors Stock Option Plan, the price is
based upon the average of the high and low prices of the Common Stock on April
6, 1998 as reported on the National Association of Securities Dealers Automated
Quotations System. The 1989 Employee Stock Purchase Plan establishes a purchase
price equal to 85% of the fair market value of the Company's Common Stock and,
therefore, the price for shares issuable under this plan is based upon 85% of
the average of the high and low prices of the Common Stock on April 6, 1998 as
reported on the National Association of Securities Dealers Automated Quotations
System.
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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 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.
(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 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 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
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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 of 1933, as amended (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;
(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, 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 reference
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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 (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 registration
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statement on Form S-8
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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 Securities and Exchange
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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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 April 10,
1998.
CONSILIUM, INC.
/s/ Laurence R. Hootnick
By:_________________________________________
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 April 10, 1998.
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Signature Title
<S> <C>
/s/ Jonathan J. Golovin Chairman of the Board and Chief Technical Officer
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Jonathan J. Golovin
/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/ Thomas A. Tomasetti Director
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Thomas A. Tomasetti
/s/ Robert Horne Director
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Robert Horne
/s/ Frederick M. O'Such Director
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Frederick M. O'Such
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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 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
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included in signature pages to this registration statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH]
April 10, 1998
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 850,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Consilium, Inc.
1996 Stock Option Plan, 1989 Employee Stock Purchase Plan and Amended and
Restated 1990 Outside Directors Stock Option Plan (the "Plans").
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 850,000 shares of
Common Stock which may be issued upon exercise of options and purchase rights
granted under the Plans 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 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 referred to above and the use of our name
wherever it appears in said Registration Statement.
Very truly yours,
/s/ GRAY CARY WARE & FREIDENRICH LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
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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 3, 1997,
included in Consilium, Inc.'s Form 10-K for the year ended October 31, 1997 and
to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
San Jose, California
April 9, 1998
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EXHIBIT 23.3
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Consilium, Inc. on Form S-8 pertaining to the registration of common stock under
the Stock Option Plans and Stock Purchase Plan of our reports dated December 6,
1995, on our audit of the consolidated statements of operations, stockholders'
equity and cash flows and the financial statement schedule of Consilium, Inc.
and subsidiaries as of October 31, 1995 and for the year then ended, appearing
in the Annual Report on Form 10-K of Consilium, Inc., filed with the Securities
and Exchange Commission pursuant to the Securities Act of 1934.
/S/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
San Jose, California
April 10, 1998
