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As filed with the Securities and Exchange Commission September 22, 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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OMNIS TECHNOLOGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-3046892
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
681 INDUSTRIAL BOULEVARD
SAN CARLOS, CA 94010
(650) 632-7124
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1994 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
1996 STOCK PLAN
1993 DIRECTORS' WARRANT PLAN
1993 ADVISORS' WARRANT PLAN
(FULL TITLE OF THE PLAN)
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KENNETH P. HOLMES
INTERIM CHIEF EXECUTIVE OFFICER AND
CHIEF FINANCIAL OFFICER
OMNIS TECHNOLOGY
CORPORATION
681 INDUSTRIAL BOULEVARD
SAN CARLOS, CA 94010
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
BRUCE M. MCNAMARA, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
===================================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.10 par value
- Newly reserved under the 1994 Employee Stock Purchase Plan,
as amended................................................... 210,000 shares $0.4687 $ 98,427 $29.83
- Newly reserved under the 1996 Stock Plan...................... 470,000 shares $0.4687 $ 220,289 $66.75
- Newly reserved under the 1993 Advisors' Warrant Plan.......... 82,500 shares $0.4687 $ 38,668 $11.72
- Newly reserved under the 1993 Directors' Warrant Plan......... 160,000 shares $0.4687 $ 74,992 $22.72
===================================================================================================================================
</TABLE>
(1) The Proposed Maximum Offering Price Per Share ("Offering Price") was
estimated in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933, as amended (the "Act"), based on the average of the high and
low price of the Registrant's Common Stock reported by the NASDAQ Bulletin
Board on September 15, 1998.
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OMNIS TECHNOLOGY CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 1998, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "1934 Act");
(b) Registrant's Current Report on Form 8-K filed June 16, 1997
pursuant to Section 13(a) of the Exchange Act.
(c) Registrant's definitive proxy statement dated August 15, 1997,
filed in connection with the September 16, 1997 Annual Meeting of Stockholders
of the Company;
(d) The description of the Registrant's capital stock set forth in
the Registrant's Registration Statement on Form 8-A filed with the Commission on
December 22, 1987;
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act on or after the date of this Registration Statement
and 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 part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Restated Certificate of Incorporation, as amended (the
"Certificate"), provides that, pursuant to Delaware law, its directors shall not
be liable for monetary damages for breach of the directors' fiduciary duty as a
director to the Registrant and its stockholders. This provision in the
Certificate does not eliminate the directors' fiduciary duty, and in appropriate
circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
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In addition, the Registrant's Bylaws provide that the Registrant will
indemnify its directors and officers and may indemnify its employees and other
agents to the fullest extent permitted by law. The Registrant believes that
indemnification under its Bylaws covers at least negligence and gross negligence
by indemnified parties, and permits the Registrant to advance litigation
expenses in the case of stockholder derivative actions or other actions, against
an undertaking by the indemnified party to repay such advances if it is
ultimately determined that the indemnified party is not entitled to
indemnification. The Registrant has purchased liability insurance for its
officers and directors.
The Registrant has entered into separate indemnification agreements with
its directors and officers. These agreements require the Registrant among other
things, to indemnify them against certain liabilities that may arise by reason
of their status or service as directors or officers (other than liabilities
arising from actions not taken in good faith or in a manner the indemnitee
believed to be opposed to the best interests of the Registrant), to advance
their expenses incurred as a result of any proceeding against them as to which
they could be indemnified and to obtain directors' liability insurance if
available on reasonable terms. Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as amended (the "Securities Act"), may
be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Securities and Exchange Commission (the "Commission"), such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable. The Registrant believes that its Certificate of
Incorporation and Bylaw provisions and indemnification agreements are necessary
to attract and retain qualified persons as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number
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5.1 Opinion of Counsel as to legality of securities being registered.
10.1 1996 Stock Plan and form of option agreement.(1)
10.2 1993 Advisors' Warrant Plan and form of Warrant.(2)
10.3 1993 Directors' Warrant Plan and form of Director's Warrant.(2)
10.4 1994 Employee Stock Purchase Plan, as amended, and form of subscription agreement.(3)
23.1 Independent Auditors' Consent.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see p. 5).
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(1) Incorporated herein by reference to the Registrant's Annual Report on Form
10-K, as amended, for the fiscal year ended March 31, 1997, filed by the
Registrant with the Commission on July 29, 1997.
(2) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-8 (Registration Number 33-81008) filed June 30, 1994.
(3) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-8 (Registration Number 333-38449) filed October 22, 1997.
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ITEM 9. UNDERTAKINGS.
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 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.
(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.
(4) 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.
(5) 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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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 San Bruno, State of California, on this 16th day of
September, 1998.
OMNIS TECHNOLOGY CORPORATION
By: /s/ KENNETH P. HOLMES
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Kenneth P. Holmes,
Interim Chief Executive Officer and
Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kenneth P. Holmes, his attorneys-in-fact,
each with the power of substitution, for him in any and all capacities to sign
any amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ KENNETH P. HOLMES Interim Chief Executive Officer and September 16, 1998
- ---------------------------- Chief Executive Officer; Director
Kenneth P. Holmes (Principal Executive Officer and
Principal Financial Officer)
/s/ PHILLIP BARRETT Director September 16, 1998
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Phillip Barrett
/s/ GERALD CHEW Director September 16, 1998
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Gerald Chew
/s/ RICHARD J. HANSCHEN Director September 16, 1998
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Richard J. Hanschen
/s/ DOUGLAS MARSHALL Director September 16, 1998
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Douglas Marshall
/s/ GEOFFREY WAGNER Director September 16, 1998
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Geoffrey Wagner
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit No. Description
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<S> <C>
5.1 Opinion of Counsel as to legality of securities being registered.
10.1 1996 Stock Plan and form of option agreement.(1)
10.2 1993 Advisors' Warrant Plan and form of Warrant.(2)
10.3 1993 Directors' Warrant Plan and form of Director's Warrant.(2)
10.4 1994 Employee Stock Purchase Plan, as amended, and form of subscription agreement.(3)
23.1 Independent Auditors Consent.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see p. 5).
</TABLE>
(1) Incorporated herein by reference to the Registrant's Annual Report on Form
10-K, as amended, for the fiscal year ended March 31, 1997, filed by the
Registrant with the Commission on July 29, 1997.
(2) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-8 (Registration Number 33-81008) filed June 30, 1994.
(3) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-8 (Registration Number 333-38449) filed October 22, 1997.
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Exhibit 5.1
September 16, 1998
OMNIS Technology Corporation
851 Traeger Avenue
San Bruno, CA 94066
RE: REGISTRATION STATEMENT ON FORM S-8
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Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about 18, 1998 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of a total of (i) 470,000 shares of your
Common Stock reserved for issuance under the Amended 1996 Stock Plan (the "Stock
Plan"), (ii) 210,000 shares of your Common Stock reserved for issuance under the
1994 Employee Stock Purchase Plan (the "ESPP"), (iii) 160,000 shares of your
Common Stock reserved for issuance under the 1993 Directors' Warrant Plan (the
"Directors' Plan") and (iv) 82,500 shares of your Common Stock reserved for
issuance under the 1993 Advisors' Warrant Plan (the "Advisors' Plan"). As your
legal counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of the Shares under the Stock Plan, ESPP, Directors' Plan and Advisors' Plan.
It is our opinion that, when issued and sold in the manner referred to in
the Stock Plan, ESPP, Directors' Plan and Advisors' Plan and pursuant to the
respective agreement which accompanies each grant under the Stock Plan, ESPP,
Directors' Plan and Advisors' Plan, the Shares will be legally and validly
issued, fully-paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever it appears in the
Registration Statement, and any amendments to it.
Sincerely yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of OMNIS Technology Corporation on Form S-8 of our report dated May 22, 1998
(which expresses an unqualified opinion and includes an explanatory paragraph
concerning certain factors which raise substantial doubt about the Company's
ability to continue as a going concern included in the Annual Report on Form
10-KSB for the year ended March 31, 1998).
DELOITTE & TOUCHE LLP
San Jose, California
September 16, 1998
