SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
LIGHTNING ROD SOFTWARE, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 41-1614808
(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
7301 Ohms Lane, Suite 600
Edina, Minnesota 55439
(Address of Principal Executive Office and Zip Code)
2000 Stock Option Plan;
Nonqualified Stock Option Agreements dated April 30, 2000;
Shares to be Issued under Stock Option Plans of Acquired Company
(Full Title of the Plan)
Willem J. Ellis
Chief Executive Officer
Lightning Rod Software, Inc.
7301 Ohms Lane, Suite 600
Edina, Minnesota 55439
(952) 837-4000
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
David C. Grorud, Esq.
Fredrikson & Byron, P.A.
1100 International Centre
Minneapolis, Minnesota 55402
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================== ==================== ====================== ====================== ======================
Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share Offering Price Registration Fee
========================== ==================== ====================== ====================== ======================
<S> <C> <C> <C> <C>
Options to Purchase
Common Stock under the
2000 Plan Indefinite $ 0.00 $ 0.00 $ 0.00
Common Stock issuable
upon exercise of options
granted under the 2000
Plan 750,000 shares $1.6875(2) $1,265,625(2) $ 335.00
Common Stock issuable
upon exercise of options
under 4/30/00 Agreements 109,400 shares $9.62 $1,052,975 $ 277.99
Common Stock issuable
upon exercise of options
under Plans of Acquired
Company 189,525 shares $9.698 $1,838,014 $ 485.24
TOTAL: $1,098.23
========================== ==================== ====================== ====================== ======================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein and any additional securities which may become
issuable pursuant to anti-dilution provisions of the plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee and based upon the average of the high and low
prices of the Registrant's Common Stock on November 2, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this
Registration Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, or either (I) the latest prospectus
filed pursuant to Rule 424(b) under the Securities
Act of 1933 that contains audited financial
statements for the Registrant's latest fiscal year
for which such statements have been filed or (II) the
Registrant's effective registration statement on Form
10 or 10-SB filed under the Securities Exchange Act
of 1934 containing audited financial statements for
the Registrant's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since
the end of the fiscal year covered by the Registrant
document referred to in (a) above;
(c) If the class of securities to be offered is
registered under Section 12 of the Securities
Exchange Act of 1934, the description of such class
of securities contained in a registration statement
filed under such Act, including any amendment or
report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all such securities then
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.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of Delaware provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, in any criminal proceeding, if such person had
no reasonable cause to believe his conduct was unlawful, provided that, in the
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case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances. The Registrant's Certificate of Incorporation
provides that the Registrant shall indemnify its directors and officers to the
fullest extent permitted by the General Corporation Law of Delaware.
The Registrant's Certificate of Incorporation also provides that no
director shall be liable to the Registrant or its stockholders for monetary
damages for breach of his fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware or (iv) for any transaction in which the
director derived an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion and Consent of Fredrikson & Byron, P.A.
relating to the legality of securities under the
Plans and Agreements.
23.1 Consent of Fredrikson & Byron, P.A. -- included in
their opinion filed as Exhibit 5.
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney from certain directors.
Item 9. Undertakings.
(a) 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,
represents a fundamental change in the
information set forth in the Registration
Statement;
<PAGE>
(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)(1)(ii) do not apply if 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 Securities Exchange Act
of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purposes 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.
(b) 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 Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) 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.
(c) 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
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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 final adjudication of such issue.
SIGNATURES
The Registrant. 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 Edina and State of Minnesota, on the 3rd day of
November, 2000.
LIGHTNING ROD SOFTWARE, INC.
(the "Registrant")
By /w/ Willem J. Ellis
Willem J. Ellis, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
(Power of Attorney)
Each of the undersigned constitutes and appoints Willem J. Ellis and
Thomas J. Patin his true and lawful attorney-in-fact and agent, each acting
alone, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign the Form S-8
Registration Statement of Lightning Rod Software, Inc. relating to the 2000
Stock Option Plan, the Nonqualified Stock Option Agreements dated April 30,
2000, and the Stock Option Plans of an acquired company, and any or all
amendments or post-effective amendments to the Form S-8 Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, each acting alone, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, each acting alone, or their substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Signature Title Date
/s/ Willem Ellis Chief Executive Officer and November 3, 2000
Willem J. Ellis director (principal executive
officer)
/s/ Jeffrey D. Skie Chief Financial Officer November 3, 2000
Jeffrey D. Skie (principal financial and
accounting officer)
/s/ Thomas J. Patin Director November 3, 2000
Thomas J. Patin
/s/ Tomas F. Madison Director November 3, 2000
Thomas F. Madison
/s/ James E. Ousley Director November 3, 2000
James E. Ousley
/s/ Sven A. Wehrwein Director November 3, 2000
Sven A. Wehrwein
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
LIGHTNING ROD SOFTWARE, INC.
Form S-8 Registration Statement
EXHIBIT INDEX
Exhibit
Number Exhibit Description
5 Opinion and Consent of counsel
23.1 Consent of counsel (See Exhibit 5)
23.2 Consent of independent accountants
24 Power of attorney (See Signature Page)
