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As filed with the Securities and Exchange Commission March 30, 2000
Registration No. 333- -
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)
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
1994 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED
(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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================
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
- Newly reserved under
the 1994 Employee
Stock Purchase Plan,
as amended 150,000 shares $15.00 $ 2,250,000 $ 594.00
- Newly reserved under
the Omnis Technology
Corporation 1999
Stock Option Plan 1,500,000 shares $15.00 $22,500,000 $5,940.00
======================================================================================================
</TABLE>
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(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
bid and asked prices of the small business issuer's Common Stock in the
over the counter market on March 30, 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, 1999 (the "Annual Report"), 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 January 7,
2000, pursuant to Section 13(a) of the Exchange Act;
(c) Registrant's definitive proxy statement dated September 7,
1999, filed in connection with the September 29, 1999 Annual Meeting of
Stockholders of the Company;
(d) 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
(e) 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, 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
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.
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
5.1 Opinion of Counsel as to legality of securities being
registered.
10.1 1994 Employee Stock Purchase Plan, as amended, and form of
subscription agreement.(1)
10.2 Omnis Technology Corporation 1999 Stock Option Plan and form of
option agreement.(2)
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 Registration
Statement on Form S-8 (Registration Number 333-38449) filed October 22,
1997.
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(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.
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 30th day
of March, 2000.
OMNIS TECHNOLOGY CORPORATION
By: /s/ GWYNETH GIBBS
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Gwyneth Gibbs,
President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gwyneth Gibbs, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
GWYNETH GIBBS President; Interim Chief March 30, 2000
- ---------------------------- Executive Officer; Director
Gwyneth Gibbs (Principal Executive Officer)
PHILLIP BARRETT Chairman; Director March 30, 2000
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Phillip Barrett
GERALD CHEW Director March 30, 2000
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Gerald Chew
JAMES DORST Chief Financial Officer; Chief March 30, 2000
- ---------------------------- Operating Officer; Director
James Dorst
DOUGLAS MARSHALL Director March 30, 2000
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Douglas Marshall
GEOFFREY WAGNER Secretary; Director March 30, 2000
- ----------------------------
Geoffrey Wagner
BRYCE BURNS Director March 30, 2000
- ----------------------------
Bryce Burns
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number
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<S> <C>
5.1 Opinion of Counsel as to legality of securities being
registered.
10.1 1994 Employee Stock Purchase Plan, as amended, and form of
subscription agreement.(1)
10.2 Omnis Technology Corporation 1999 Stock Option Plan and form of
option agreement.(2)
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 Registration
Statement on Form S-8 (Registration Number 333-38449) filed October 22,
1997.
(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.
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Exhibit 5.1
OPINION OF COUNSEL AS TO LEGALITY OF SECURITIES
March 30, 2000
OMNIS Technology Corporation
981 Industrial Way
San Carlos, CA 94070
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have acted as counsel to OMNIS Technology Corporation, a Delaware
corporation (the "Company") in connection with the registration on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended, of
a total of 1,650,000 shares of Common Stock (the "Shares") and related stock
options for issuance under (i) the 1999 Stock Option Plan (the "Option Plan"),
and (ii) the 1994 Employee Stock Purchase Plan (the "Purchase Plan"). This
opinion is being furnished in accordance with the regulations of Item 8 of Form
S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment and
amendment of the Option Plan and Purhchase Plan. Based on such review, we are
of the opinion that, if, as and when the Shares are issued and sold (and the
consideration therefor received) pursuant to (a) the provisions of option
agreements duly authorized under the Option Plan and in accordance with the
Registration Statement, or (b) duly authorized stock purchase rights granted
and exercised under the Purchase Plan and in accordance with the Registration
Statement, such Shares will be duly authorized, legally issued, fully paid and
nonassessable.
We consent to the filing of this opinion letter as Exhibit 5 to the
Registration Statement. This opinion letter is rendered as of the date first
written above and we disclaim any obligation to advise you of facts,
circumstances, events or developments which hereafter may be brought to our
attention and whch may alter, affect or modify the opinion expressed herein.
Our opinion is expressly limited to the matters set forth above and we render
no opinion, whether by implication or otherwise, as to any other matters
relating to the Company, the Option Plan or the Purchase Plan or the Shares
issuable under such plans.
Sincerely yours,
MORRISON & FOERSTER LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS CONSENT
We have issued our report dated June 1, 1999 accompanying the consolidated
financial statements of Omnis Technology Corporation included in the annual
report on Form 10-KSB for the year ended March 31, 1999 which is incorporated by
reference in this Registration Statement. We consent to the incorporation by
reference in the Registration Statement of the aforementioned report on Form
S-8.
GRANT THORNTON LLP
San Francisco, California
February 24, 2000
