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As filed with the Securities and Exchange Commission November 30, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
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)
981 INDUSTRIAL BOULEVARD, BUILDING B
SAN CARLOS, CA 94070
(650) 632-7124
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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OMNIS TECHNOLOGY CORPORATION 1999 STOCK OPTION PLAN, AS AMENDED
OPTIONS ASSUMED PURSUANT TO A WRITTEN COMPENSATORY CONTRACT
FOR EMPLOYEES AS PART OF THE AGREEMENT AND PLAN OF MERGER BETWEEN
REGISTRANT, PICKAX, INC., RAINING MERGER SUB, INC. AND
GILBERT FIGUEROA DATED AS OF AUGUST 23, 2000
(FULL TITLE OF THE PLAN)
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GWYNETH GIBBS
PRESIDENT
OMNIS TECHNOLOGY CORPORATION
981 INDUSTRIAL BOULEVARD, BUILDING B
SAN CARLOS, CA 94070
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
STAFFORD MATTHEWS, ESQ.
MORRISON & FOERSTER
425 MARKET STREET
SAN FRANCISCO, CA 94105
(415) 268-7000
----------------------------
CALCULATION OF REGISTRATION FEE
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======================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
PROPOSED MAXIMUM AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS TO BE PRICE OFFERING REGISTRATION
OF SECURITIES REGISTERED PER SHARE(1) PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.10 par value
- Options assumed pursuant to
a written compensatory
contract for employees as
part of the Agreement and
Plan of Merger between
Registrant, PickAx, Inc.,
Raining Merger Sub, Inc.
and Gilbert Figueroa dated as
of August 23, 2000 (2) 1,382,302 shares $ 2.95 $ 4,077,791 $1,076.54
152,748 shares $ 3.24 $ 494,904 $ 130.65
- Newly reserved under
the Omnis Technology
Corporation Amended 1999
Stock Option Plan (3) 3,500,000 shares $ 4.44 $15,540,000 $4,102.56
======================================================================================================
</TABLE>
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(1) The Proposed Maximum Offering Price Per Share ("Offering Price") was
calculated in accordance with Rule 457(c) under the Securities Act of
1933, as amended (the "Act").
(2) Existing stock options of PickAx, Inc., a Delaware corporation, equal to
up to 1,535,118 shares of the Common Stock of the Registrant, $.10 par
value, on a fully exercised basis, are being assumed by the Registrant
pursuant to that certain Agreement and Plan of Merger between
Registrant, PickAx, Inc., Raining Merger Sub, Inc. and Gilbert Figueroa
dated as of August 23, 2000. Up to 1,382,302 of such options are being
assumed at an exercise price of $2.95 per share, and 152,748 of such
options are being assumed at an exercise price of $3.24 per share.
(3) The Offering Price for the newly reserved shares of Common Stock of
Registrant under the Amended 1999 Stock Option Plan was based on the
average of high and low prices of Registrant's Common Stock in the over
the counter market on November 28, 2000.
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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/A for the fiscal
year ended March 31, 2000 (the "Annual Report"), filed pursuant to Section 13(a)
of the Securities Exchange Act of 1934, as amended (the "1934 Act") on July 31,
2000;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the 1934 Act since the end of the fiscal year covered by the
Annual Report; and
(c) 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 Registrant 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, none of its directors
shall be personally liable for monetary damages for breach of the director's
fiduciary duty as a director. This provision in the Certificate does not
eliminate the fiduciary duty of directors, and in appropriate circumstances
equitable remedies such as injunctive or other forms of non-monetary relief will
remain to the extent available under Delaware law. In addition,
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each director may be liable for breach of the director's duty of loyalty to the
Registrant or its stockholders, for acts or omissions not in good faith or
involving intentional misconduct or a knowing violation of law, for any
transaction from which the director derived improper personal benefit and/or for
dividends or purchases or redemptions related to its shares that are unlawful
under Section 174 of the General Corporation Law of Delaware. The provision also
does not affect a director's responsibilities under any other law, such as the
federal securities laws.
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 Delaware 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
certain of its directors and officers. These agreements require the Registrant
among other matters, 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' and officers' 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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<CAPTION>
Exhibit
Number
<S> <C>
4.1 Agreement and Plan of Merger between Registrant, Pickax, Inc.,
Raining Merger Sub, Inc. and Gilbert Figueroa dated as of August
23, 2000.(1)
4.2 Omnis Technology Corporation 1999 Stock Option Plan and form of
option agreement.(2)
4.3 Omnis Technology Corporation Amended 1999 Stock Option Plan.(3)
5.1 Opinion of Counsel as to legality of securities being
registered.
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 Quarterly Report
on Form 10-QSB filed on November 6, 2000.
(2) Incorporated herein by reference to the Registrant's Annual Report on
Form 10-KSB/A, as amended, for the fiscal year ended March 31, 1999,
filed by the Registrant with the Commission on July 29, 1999.
(3) Incorporated herein by reference to the Registrant's Definitive Proxy
Statement filed October 10, 2000, in connection with the October 23,
2000 Annual Meeting of the Stockholders of Registrant.
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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 Carlos, State of California, on this 29th day
of November, 2000.
OMNIS TECHNOLOGY CORPORATION
By: /s/ GWYNETH GIBBS
---------------------------------
Gwyneth Gibbs,
President
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Signature Title Date
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GEOFFREY WAGNER Secretary; Director November 29, 2000
----------------------------
Geoffrey Wagner
BRYCE J. BURNS Chairman; Director November 29, 2000
----------------------------
Bryce J. Burns
GWYNETH GIBBS President; Interim Chief November 29, 2000
---------------------------- Executive Officer; Director
Gwyneth Gibbs (Principal Executive Officer)
GILBERT FIGUEROA Director November 29, 2000
----------------------------
Gilbert Figueroa
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bryce J. Burns, 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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Signature Title Date
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<S> <C> <C>
BRYCE J. BURNS Chairman; Director November 29, 2000
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Bryce J. Burns
GWYNETH GIBBS President; Interim Chief November 29, 2000
---------------------------- Executive Officer; Director
Gwyneth Gibbs (Principal Executive Officer)
GILBERT FIGUEROA Director November 29, 2000
----------------------------
Gilbert Figueroa
GERALD CHEW Director November 29, 2000
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Gerald Chew
BRYAN SPARKS Director November 29, 2000
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Bryan Sparks
DOUGLAS MARSHALL Director November 29, 2000
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Douglas Marshall
GEOFFREY WAGNER Secretary; Director November 29, 2000
----------------------------
Geoffrey Wagner
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INDEX TO EXHIBITS
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<CAPTION>
Exhibit
Number
<S> <C>
4.1 Agreement and Plan of Merger between Registrant, Pickax, Inc.,
Raining Merger Sub, Inc. and Gilbert Figueroa dated as of August
23, 2000.(1)
4.2 Omnis Technology Corporation 1999 Stock Option Plan and form of
option agreement.(2)
4.3 Omnis Technology Corporation Amended 1999 Stock Option Plan.(3)
5.1 Opinion of Counsel as to legality of securities being
registered.
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 Quarterly Report on
Form 10-QSB filed on November 6, 2000.
(2) Incorporated herein by reference to the Registrant's Annual Report on
Form 10-KSB/A, as amended, for the fiscal year ended March 31, 1999,
filed by the Registrant with the Commission on July 29, 1999.
(3) Incorporated herein by reference to the Registrant's Definitive Proxy
Statement filed October 10, 2000, in connection with the October 23,
2000 Annual Meeting of the Stockholders of Registrant.
