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As Filed With the Securities and Exchange Commission on November 24, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington. D.C. 20549
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
195 Technology Drive, Irvine, California 92618-2402
(Address of Principal Executive Offices) (Zip Code)
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1998 NONQUALIFIED STOCK OPTION PLAN
PLATINUM SOFTWARE CORPORATION
(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)
(949) 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
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
Proposed maximum Proposed 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>
Common Stock, 3,000,000 (2) $59,210,974 (2) $16,460.65
$.001 par value shares
================================================================================================
</TABLE>
(1) This Registration Statement covers an aggregate of 3,000,000 shares of
Common Stock which may be issued pursuant to Registrant's 1998
Nonqualified Stock Option Plan (the "Plan") 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
2,463,062 shares of Common Stock registered hereby which would be issued
upon exercise of options granted under the Plan are based upon the per
share exercise price of such options, the weighted average of which is
$21.4645 per share. With respect to the remaining 536,938 shares of
Common Stock registered hereby which would be issued upon exercise of
the remaining options which Registrant is authorized to issue under its
Plan, the aggregate offering price is estimated solely for purposes of
calculating the registration fee, in accordance with Rule 457(h) on the
basis of the price of securities of the same class, as determined in
accordance with Rule 457(c), using the average of the high and low price
reported by NASDAQ National Market System for the Common Stock on
November 19, 1998, which was $11.8125 per share.
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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, 1998.
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
(c) Registrant's Current Reports on Form 8-K filed with the Commission
on August 5, 1998 and November 3, 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.
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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 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 Platinum Software Corporation 1998 Nonqualified Stock Option
Plan, as amended to date. (Incorporated by reference to the
referenced exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended June 30, 1998.)
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati, (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (included on the signature page to the
Registration Statement - see pages II-4 through II-6).
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");
(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;
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(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 23rd day of
November, 1998.
PLATINUM SOFTWARE CORPORATION
By: /s/ L. GEORGE KLAUS
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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 Paul G.
Mazzarella, 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
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<S> <C> <C>
/s/ L. GEORGE KLAUS Chairman of the Board, November 23, 1998
- --------------------------- Chief Executive Officer and
L. George Klaus President
/s/ PAUL G. MAZZARELLA Corporate Controller November 23, 1998
- --------------------------- (Principal Accounting and
Paul G. Mazzarella Financial Officer)
/s/ ARTHUR J. MARKS Director November 23, 1998
- ---------------------------
Arthur J. Marks
Director ___________, 1998
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L. John Doerr
/s/ DONALD R. DIXON Director November 23, 1998
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Donald R. Dixon
/s/ W. DOUGLAS HAJJAR Director November 23, 1998
- ---------------------------
W. Douglas Hajjar
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
------- ----------- -----------
<S> <C> <C>
4.1 Platinum Software Corporation 1998 Nonqualified Stock Option Plan,
as amended to date. (Incorporated by reference to the referenced
exhibit to the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1998.)
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati.
23.1 Consent of Wilson, Sonsini, Goodrich & Rosati (Included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (Included on the signature page to the
Registration Statement - see pages II-4 and II-5.)
</TABLE>
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Exhibit 5.1
November 20, 1998
Platinum Software Corporation
195 Technology
Irvine, California 92618-2402
RE: REGISTRATION STATEMENT ON FORM S-8
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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 the date hereof (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of shares of your Common Stock (the
"Shares") to be issued pursuant to your 1998 Nonqualified Stock Option Plan (the
"Plan"). As your counsel in connection with this transaction, we have examined
the proceedings taken and are familiar with the proceedings proposed to be taken
by you in connection with the issuance and sale of the Shares pursuant to the
Plan.
It is our opinion that, when issued and sold in the manner described in
the Plan and pursuant to the agreements which accompany grants under the Plan,
the Shares will be legally and validly issued, fully-paid and non-assessable.
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 appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8), pertaining to the Platinum Software Corporation 1998 Nonqualified
Stock Option Plan, of our reports dated July 29, 1998, 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, 1998,
filed with the Securities and Exchange Commission.
Orange County, California
November 18, 1998
