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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 1998
Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Unify Corporation
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(Exact name of registrant as specified in its charter)
Delaware 94-2710559
- ------------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
181 Metro Drive, Third Floor
San Jose, California 95110
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(Address of principal executive offices) (Zip code)
Unify Corporation
1991 Stock Option Plan
1996 Employee Stock Purchase Plan
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(Full title of the plan)
Reza Mikailli
President, Chief Executive Officer and
Acting Chief Financial Officer
181 Metro Drive, Third Floor
San Jose, California 95110
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 346-1100
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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Proposed Proposed maximum
maximum aggregate
Title of Securities Amount to be offering price offering Amount of
to be registered(1) registered per share(2) price(2) registration fee
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<S> <C> <C> <C> <C>
1991 STOCK OPTION PLAN
Common Stock 928,432 $2.6875 $2,495,161 $ 736.07
Par Value $0.001
1996 EMPLOYEE STOCK PURCHASE PLAN
Common Stock 450,000 $2.284375 $1,027,968.70 $ 303.25
Par Value $0.001
Total 1,378,432 $3,523,129.70 $1,039.32
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Unify Corporation (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
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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 the shares under the 1991 Stock Option Plan, the
price is based on the average of the high and low prices of the Common Stock
on August 11, 1998, as reported on the National Association of Securities
Dealers Automated Quotations System. The 1996 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
Company's Common Stock on August 11, 1998, as reported on the National
Association of Securities Dealers Automated Quotations System.
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audited financial statements for the Company's latest fiscal year ended April
30, 1998, as filed with the Securities and Exchange Commission.
(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-A 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
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
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Inapplicable.
ITEM 8. EXHIBITS
See Exhibit Index.
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering
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,
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
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 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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
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 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
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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
STATEMENT ON FORM S-8
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
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 the final adjudication of such
issue.
SIGNATURE
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 San Jose, State of California, on
August 13, 1998.
UNIFY CORPORATION
By: /s/ Reza Mikailli
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Reza Mikailli, President, Chief Executive
Officer and Acting Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Unify Corporation whose signatures appear
below, hereby constitute and appoint Reza Mikailli, their true and lawful
attorney and agent, with full power of substitution, 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 said attorney and agent, 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 August 13, 1998.
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<CAPTION>
Signature Title
<S> <C>
/s/ Reza Mikailli President, Chief Executive Officer,
- --------------------------------- Acting Chief Financial Officer and
Reza Mikailli Director (Principal Executive,
Financial and Accounting Officer)
- --------------------------------- Director
Roel Pieper
/s/ Steven D. Whiteman
- --------------------------------- Director
Steven D. Whiteman
/s/ Arthur C. Patterson
- --------------------------------- Director
Arthur C. Patterson
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EXHIBIT INDEX
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4.2 Restated Certificate of Incorporation of the Company is incorporated
by reference to Exhibit 3.1 to the Company's Registration Statement
on Form S-1 filed with the Securities and Exchange Commission on
April 6, 1996 (No. 33-3834) (the "S-1").
4.3 Bylaws of the Company are incorporated by reference to Exhibit 3.2 of
the Company's S-1.
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP, Independent Auditors
23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
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[Letterhead of Gray Cary Ware & Freidenrich LLP]
EXHIBIT 5
August 13, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Unify Corporation, 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 1,432,432 shares of
the Common Stock, $0.001 par value, of the Company which may be issued
pursuant to the exercise of options and purchase rights granted under the
Unify Corporation 1991 Stock Option Plan and the 1996 Employee Purchase 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 1,432,432 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 Agreements, 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
CONSENT OF DELOITTE & TOUCHE LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
of Unify Corporation on Form S-8 of our report dated May 18, 1998 appearing
in the Annual Report on Form 10-K of Unify Corporation for the year ended
April 30, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
August 14, 1998
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EXHIBIT 23.3
CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS
We consent to the incorporation herein by reference of our report dated
May 17, 1996, relating to the consolidated statements of operations,
stockholders' deficit, and cash flows of Unify Corporation and subsidiaries
for the year ended April 30, 1996, and the related financial statement
schedule, which report appears in the April 30, 1998 annual report on
Form 10-K of Unify Corporation.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Mountain View, California
August 14, 1998
