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As Filed With the Securities and Exchange Commission on February 17, 1998
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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PLATINUM SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 33-0277592
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
195 Technology Drive, Irvine, California 92618-2402
(Address of Principal Executive Offices) (Zip Code)
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KEY EMPLOYEE OPTIONS
FOCUSSOFT STOCK OPTION PLAN
(Full title of plans)
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L. George Klaus, Chief Executive Officer
Platinum Software Corporation
195 Technology Drive
Irvine, California 92618-2402
(Name and address of agent for service)
(714) 453-4000
(Telephone number, including area code, of agent for service)
Copies to:
Perry Tarnofsky, Esq.
Platinum Software Corporation
195 Technology Drive
Irvine, CA 92618-2402
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered (1) per share price registration fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 525,206 (2) $2,520,989 (2) $ 787.81
$.001 par value shares
- -------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement covers an aggregate of 300,000 shares of Common
Stock which may be issued pursuant to Key Employee Nonqualified Stock
Option Agreements ("Key Employee Options") and 225,206 shares of Common
Stock which may be issued pursuant to the FocusSoft Stock Option Plan,
which is comprised of nonqualified stock option agreements assumed in
connection with the merger with FocusSoft, Inc. which occurred on November
14, 1997 ("FocusSoft Options"); together with such additional shares of
such Common Stock as may be issued to the holders of such options pursuant
to anti-dilution provisions.
(2) In accordance with Rule 457(h), the aggregate offering price of 525,206
shares of Common Stock registered hereby which would be issued upon
exercise of the Key Employee Options and the FocusSoft Options are based
upon the per share exercise price of such options, the weighted average of
which is $4.80 per share.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission (the "Commission") and are incorporated
herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1997.
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1997, and December 31, 1997.
(c) Registrant's Current Reports on Form 8-K dated June 30, 1997 (as
amended by Form 8-K filed with the Commission on July 11, 1997), July 29, 1997,
October 29, 1997, November 14, 1997 and January 22, 1998.
(d) All other reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the annual report referred to
in (a) above.
(e) The description of the Registrant's Common Stock which is contained
in the Registrant's registration statement on Form 8-A filed on October 15, 1992
pursuant to Section 12 of the Exchange 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 Exchange Act, prior to the filing of a
post-effective amendment to the registration statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
the filing of such documents; except as to any portion of any future annual or
quarterly report to stockholders or document that is not deemed filed under such
provisions. For the purposes of this registration statement, any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the Second
Restated Certificate of Incorporation eliminates the liability of directors to
the Registrant or its stockholders for
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monetary damages for breach of fiduciary duty as a director, except to the
extent otherwise required by the Delaware General Corporation Law.
(b) The Amended and Restated Certificate of Incorporation provides that
the Registrant will indemnify each person who was or is made a party to any
proceeding by reason of the fact that such person is or was a director or
officer of the Registrant against all expense, liability and loss reasonably
incurred or suffered by such person in connection therewith to the fullest
extent authorized by the Delaware General Corporation Law. The Registrant's
Amended and Restated Bylaws provide for a similar indemnity to directors and
officers of the Company to the fullest extent authorized by the Delaware General
Corporation Law.
(c) The Registrant has entered into indemnification agreements with each
of its directors and executive officers. The indemnification agreements provide
for the indemnification of directors and executive officers of the Registrant
against any and all expenses, judgments, fines, penalties and amounts paid in
settlement, to the fullest extent permitted by law.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Nonqualified Stock Option Agreement between the Company and John
Lococo.*
4.2 Nonqualified Option Agreement between the Company and Michael
Zimmerman.*
4.3 Form of FocusSoft Nonqualified Stock Option Agreement.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-5 and II-6).
--------------------
*Incorporated by reference to Exhibit 2.1 to the Company's current
report on Form 8-K dated November 14, 1997.
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 (the "Securities Act");
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(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)(1)(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, 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, 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.
(c) 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 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.
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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 Irvine, State of California, on the 12th day of
February, 1998.
PLATINUM SOFTWARE CORPORATION
By: /s/ L. George Klaus
-------------------------------------
L. George Klaus
Chairman of the Board,
Chief Executive Officer and President
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POWER OF ATTORNEY
We, the undersigned officers and directors of Platinum Software
Corporation, do hereby constitute and appoint L. George Klaus and Michael J.
Simmons, or either of them, our true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite are necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorney-in-fact and agents, or his substitute
or substitutes, may lawfully 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ L. George Klaus Chairman of the Board, February 12, 1998
- ------------------------------------ Chief Executive Officer and
L. George Klaus President
/s/ Michael J. Simmons Chief Financial Officer February 12, 1998
- ------------------------------------ (Principal Financial Officer)
Michael J. Simmons
/s/ Paul G. Mazzarella Corporate Controller February 12, 1998
- ------------------------------------ (Principal Accounting Officer)
Paul G. Mazzarella
- ------------------------------------ Director
Carmelo J. Santoro
/s/ Arthur J. Marks Director February 12, 1998
- ------------------------------------
Arthur J. Marks
/s/ L. John Doerr Director February 12, 1998
- ------------------
L. John Doerr
/s/ Richard J. Goeglein Director February 12, 1998
- ------------------------------------
Richard J. Goeglein
</TABLE>
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(SIGNATURE PAGE TO POWER OF ATTORNEY CONTINUED)
<TABLE>
<S> <C> <C>
/s/ Donald R. Dixon Director February 12, 1998
- ------------------------------------
Donald R. Dixon
/s/ W. Douglas Hajjar Director February 12, 1998
- ------------------------------------
W. Douglas Hajjar
/s/ John Lococo Director February 12, 1998
- ------------------------------------
John Lococo
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
- ------- ----------- -----------
<S> <C> <C>
4.1 Nonqualified Stock Option Agreement between the Company and John Lococo.
(Incorporated by reference to Exhibit 2.1 to the Company's Current Report
on Form 8-K dated November 14, 1997.)
4.2 Nonqualified Option Agreement between the Company and Michael Zimmerman.
(Incorporated by reference to Exhibit 2.1 to the Company's Current Report
on Form 8-K dated November 14, 1997.)
4.3 Form of FocusSoft Nonqualified Stock Option Agreement.
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, a Professional
Corporation.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati, a Professional Corporation
(Included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Accountants.
24.1 Power of Attorney (Included on the signature page to the Registration
Statement - see pages II-5 and II-6.)
</TABLE>
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<PAGE> 1
EXHIBIT 4.3
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") to be effective the ___ day of _______,
1995 by and between ________________________________ (the "Employee") and
FocusSoft, Inc. (the "Corporation").
RECITALS
As part of the transaction by which the Employee shall be employed by the
Corporation, the parties desire that Employee shall have an option to acquire
certain shares of the unissued Class B Non-Voting Common Capital Stock of the
Corporation ("Shares") subject to the expressed terms and conditions provided
herein.
AGREEMENT
IN CONSIDERATION of the foregoing and the mutual terms and conditions
included herein, the parties agree as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Employee an option
to acquire the following Shares subject to the terms and conditions herein
(the "Option Shares") (collectively, the "Options"):
(a) _____________________ (____) shares of the Class B Non-Voting
Common Capital Stock of the Corporation ("First Option").
(b) _____________________ (____) shares of the Class B Non-Voting
Common Capital Stock of the Corporation ("Second Option").
2. EXERCISE OF OPTION. The Options may be exercised by Employee under
the following conditions ("Exercise Events"):
(a) First Option -- _________________ (____) months following the
execution date of this Agreement provided Employee shall have
performed all employment duties and responsibilities assigned in
a satisfactory manner as determined solely by the Corporation.
(b) Second Option -- _________________ (____) months following the
execution date of this Agreement provided Employee shall have
performed all employment duties and responsibilities assigned in
a satisfactory manner as determined solely by the Corporation.
Notwithstanding any term or provision of this Agreement to the contrary, in no
event shall any Option be granted or exercised unless Employee shall at such
time of grant and exercise remain an active, full time employee of the
Corporation. In the event such employment shall terminate or expire prior to
exercise, for any reason, all such Options provided herein shall terminate and
be permanently and irrevocably forfeited.
<PAGE> 2
3. OPTION PERIOD. Subject to the terms of this Agreement, the Options
may be exercised by Employee upon the occurrence of the Exercise Events as set
forth in Section 2 but not later than sixty (60) months following such dates
("Option Period"). Upon the Employee's satisfactory completion of all terms and
conditions as set forth in this Agreement, such Options shall be exercised by
the Employee through the delivery by such Employee of written notice to the
Corporation of his or her intention to so exercise such Options during the
Option Period. In the event the Employee shall for any reason fail to give such
notice or to exercise the Options and remit the Option Price to the Corporation
during the Option Period, or shall fail to fully satisfy any term, provision or
requirement of this Agreement, each such Option shall be permanently and
irrevocably forfeited and Employee shall have no further right, claim, or
interest of any nature therein to such Option or Option Shares, nor shall the
Employee possess any claims against the Corporation derived in any manner from
this Agreement or the transactions included herein.
4. OPTION PRICE. With respect to the exercise of the Options by
Employee, the Option Price per share for the Option Shares shall be as follows
("Option Price"):
(a) First Option - __________ (____) per Share times the total
number Option Shares acquired ("Option Price").
(b) Second Option - __________ (____) per Share times the total
number Option Shares acquired ("Option Price").
5. PAYMENT. Each Option Price shall be paid in cash in full during the
Option Period. Upon such receipt of the Option Price, the Corporation shall
issue the Option Shares subject to the restrictions and conditions included
herein no later than thirty (30) days thereafter. Notwithstanding any term or
provision of this Agreement to the contrary, the exercise of the Options shall
be contingent upon the satisfaction by Employee of any federal, state, and
local payroll tax or similar withholding obligations of the Corporation that
shall be applicable to the exercise of the Options.
6. LIMITATIONS. The Options provided herein are not assignable or
transferrable and may only be exercised by Employee personally, subject to all
terms and conditions of this Agreement. In no event whatsoever shall any right,
title, or interest in the Option Shares or any Shares including but not limited
to dividend, distribution, or similar rights, vest in Employee prior to
exercise of the Options and issuance of the Option Shares pursuant to this
Agreement.
7. STOCK RESTRICTION AND PURCHASE AGREEMENTS. Notwithstanding any term
or provision of this Agreement to the contrary, the Options shall not be
exercised and no Option Shares may be issued unless Employee shall execute a
Stock Restriction and Purchase Agreement ("Shareholder Agreement") in such form
as shall be solely acceptable to the Corporation. Such Shareholder Agreement
shall provide for, among other matters, transfer restrictions, mandatory
offering events, purchase price calculations and payment terms, and such other
terms, conditions, and restrictions as shall be solely determined by the
Corporation.
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8. REGISTRATION. The Options provided herein are subject to the
requirement that, if at any time the board of directors of the Corporation
shall determine, in its discretion, that the listing, registration, or
qualification of the Option Shares or Shares upon any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory body, is necessary of desirable as a condition of, or in connection
with, the granting of the Option or the issue or purchase of Option Shares
under this Agreement, the Options may not be exercised in whole or in part
unless such listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to the
board of directors of the Corporation. The Employee represents to the
Corporation that it is his intention to acquire the Option Shares for
investment and not with a view toward the distribution or sale thereof.
9. EQUITY ADJUSTMENTS. The Options granted herein are based upon the
current equity structure of the Corporation. In the event the equity of the
Corporation shall for any reason be adjusted, amended, or modified, whether by
reorganization, recapitalization, or otherwise, the Corporation shall have the
authority to make such adjustments in its sole discretion that it deems
necessary regarding the Option Shares subject to the Options to be granted
herein.
10. PLAN PROCEDURES AND AMENDMENT. Until such time that the Options
herein are fully exercised, this Agreement and all terms included herein may be
amended or terminated, in whole or in part, solely by the Corporation without
prior notice. Each determination, interpretation, or other action made or taken
pursuant to the provisions of this Agreement by the board of directors of the
Corporation shall be final and shall be binding and conclusive for all purposes
on the Corporation and Employee.
11. NO EMPLOYMENT. In no event shall this Agreement be construed as an
offer or agreement of employment or continuing employment for any stated term.
12. MISCELLANEOUS.
(a) COMPLETE AGREEMENT. This Agreement supersedes all prior
agreements and understandings between the parties, written or oral, related to
the subject matter hereof and is intended by the parties as the complete and
exclusive statement of the terms of this Agreement.
(b) APPLICABLE LAW. This Agreement, and any properly executed
amendments hereto, and any disputes relating to this Agreement shall be
construed under and controlled by laws of the State of Kentucky.
(c) SEVERABILITY. In the event that any provision of this
Agreement is found to be unenforceable, illegal, or contrary to public policy,
said Agreement shall remain in full force and effect, except for any such
unenforceable provisions.
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(d) ASSIGNMENT. This Agreement is binding upon and shall inure to
the benefit of the legal successors and assigns of the Corporation.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date indicated below to be effective ________________, 1995.
FOCUSSOFT, INC. _____________________________________
("Corporation")
_____________________________________
("Employee")
BY: _________________________________ DATE: _______________________________
TITLE: ______________________________
DATE: _______________________________
4
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EXHIBIT 5.1
February 17, 1998
Platinum Software Corporation
195 Technology Drive
Irvine, CA 92618
RE: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and 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 February 17, 1998
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 525,206 shares of Common
Stock (the "Shares") reserved for issuance pursuant to key employee nonqualified
stock option agreements and certain nonqualified stock option agreements assumed
by the Company pursuant to its acquisition of FocusSoft, Inc., a Kentucky
corporation ("FocusSoft") as fully described in the Registration Statement
(collectively, the "Agreements"). 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 Agreements.
It is our opinion that, when issued and sold pursuant to the terms of
the Agreements, 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 amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Platinum Software Corporation Key Employee Options and
the FocusSoft Stock Option Plan of our reports dated July 29, 1997, with respect
to the consolidated financial statements and schedule of Platinum Software
Corporation included in its Annual Report (Form 10-K) for the year ended June
30, 1997, filed with the Securities and Exchange Commission.
Orange County, California
February 11, 1998
