<PAGE>
As filed with the Securities and Exchange Commission on October 9, 1996
Registration No. 33-
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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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PEERLESS SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 95-3732595
(State of Incorporation) (I.R.S. Employer Identification No.)
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2381 ROSECRANS AVENUE
EL SEGUNDO, CA 90245
(310) 536-0908
(Address and telephone number of principal executive offices)
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NON-PLAN OPTION GRANTS
1992 STOCK OPTION PLAN
1996 EQUITY INCENTIVE PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
EDWARD A. GAVALDON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2381 ROSECRANS AVENUE
EL SEGUNDO, CA 90245
(310) 536-0908
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
GREGORY C. SMITH, ESQ.
BRETT D. WHITE, ESQ.
COOLEY GODWARD LLP
3000 EL CAMINO REAL
FIVE PALO ALTO SQUARE
(415) 843-5000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
=========================================================================================================
SECURITIES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING
SHARE PRICE
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<S> <C> <C> <C>
Shares issuable pursuant to 1,666 $ 0.2025 $ 337.37
outstanding options under the 37,463 $ 0.5250 $ 19,668.08
Non-Plan Option Grants:
Totals: 39,129 $ 20,005.44
- ----------------------------------------------------------------------------------------------------------
Shares issuable pursuant to 117,883 $ 0.5250 $ 61,862.33
outstanding options under the 60 $ 0.5775 34.65
1992 Stock Option Plan: 572,034 $ 1.4250 815,148.45
194,521 $ 1.6500 320,959.65
Totals: 884,448 1,198,005.08
- ----------------------------------------------------------------------------------------------------------
Shares issuable pursuant to 490,913 $ 3.3000 $ 1,620,012.90
outstanding options under the 7,500 $ 3.6300 $ 27,225.00
1996 Equity Incentive Plan: 5,699 $ 4.9500 $ 28,046.70
18,999 $ 8.2500 $ 156,741.75
36,665 $ 9.0000 $ 329,985.00
66,665 $11.0000 $ 733,315.00
5,666 $11.1250 63,034.25
Totals: 626,408 $ 2,958,360.60
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Shares issuable pursuant to 1,061,759 $11.3125(1) $12,011,148.69
the 1992 Stock Option Plan,
1996 Equity Incentive Plan,
and 1996 Employee Stock
Purchase Plan:
Totals: 2,617,410 $16,187,519.81
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x0.00030303
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Registration Fee: $ 4,905.63
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and Rule 457(h). The price per
share and aggregate offering price are based upon the average of the high
and low prices of Registrant's Common Stock on October 3, 1996, as reported
on the NASDAQ National Market System.
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</TABLE>
Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Peerless Systems Corporation (the
"Company" or the "Registrant") with the Securities and Exchange Commission (the
"SEC") are incorporated by reference into this Registration Statement:
(a) The latest prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Act"), that contains audited financial
statements for the Company's latest fiscal year for which such statements have
been filed.
(b) All other reports filed 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 reports, the prospectus or the
registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed with the SEC under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All reports and other 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 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
As of the date of this Registration Statement, certain members of Cooley
Godward LLP beneficially owned 14,881 shares of Common Stock of the Company.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Delaware General Corporation Law (the "Delaware Law"),
the Company's Certificate of Incorporation provides that no director of the
Company will be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except (i) for any
breach of the directors' duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or involving intentional misconduct
or a knowing violation of law, (iii) unlawful payments of dividends or unlawful
stock repurchases or redemptions, or (iv) for any transaction from which the
director derives any improper personal benefit. In addition, the Company's
Bylaws provide that any director or officer who was or is a party or is
threatened to be made a party to any action or proceeding by reason of his or
her services to the Company will be indemnified to the fullest extent permitted
by the Delaware Law.
The Company has entered into indemnification agreements with each of its
directors and executive officers pursuant to which the Company has agreed to
indemnify each of them against expenses and losses incurred for claims brought
against them by reason of their being a director of executive officer of the
Company. In addition, the Company maintains directors' and officers' liability
insurance. There is no pending litigation or proceeding involving a director or
officer of the Company as to which indemnification is being sought, nor is the
Company aware of any pending or threatened litigation that may result in claims
for indemnification by any director or executive officer.
Under the form of Underwriting Agreement filed as Exhibit 1.1 to the
Company's Form S-1 Registration Statement (Registration No. 333-09357), the
Underwriters are obligated, under certain circumstances, to indemnify directors
and officers of the Registrant against certain liabilities, including
liabilities under the Securities Act.
1.
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EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER
4.1+ Form of Certificate of Incorporation
4.2+ Bylaws
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1+ 1992 Stock Option Plan, as amended
99.2+ 1996 Equity Incentive Plan
99.3+ 1996 Employee Stock Purchase Plan
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+ Filed as an exhibit to the Registration Statement on Form S-1 (No. 333-
09357), as amended through the date hereof.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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;
(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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) ((S) 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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;
2.
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Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
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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 issuer pursuant to section 13 or section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. 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.
3.
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SIGNATURES
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 El Segundo, State of California, on October 8, 1996.
PEERLESS SYSTEMS CORPORATION
By /s/ Edward A. Gavaldon
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Edward A. Gavaldon
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward A. Gavaldon and Hoshi Printer, and
each or any one of them, his true and lawful attorney-in-fact and agent, 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 (including
post-effective amendments) to this 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, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
4.
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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
<S> <C> <C>
/s/ Edward A. Gavaldon Chairman of the Board of Directors, President October 8, 1996
- ----------------------- and Chief Executive Officer
Edward A. Gavaldon
/s/ Hoshi Printer Vice President, Finance and Administration,
- ---------------------- Chief Financial Officer and Secretary October 8, 1996
Hoshi Printer (Principal Financial Officer)
/s/ Robert G. Barrett Director October 8, 1996
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Robert G. Barrett
/s/ Paul D. Levy Director October 8, 1996
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Paul D. Levy
/s/ Robert L. North Director October 8, 1996
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Robert L. North
/s/ Lauren L. Shaw Director October 8, 1996
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Lauren L. Shaw
</TABLE>
5.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<C> <S>
4.1+ Certificate of Incorporation
4.2+ Bylaws
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1+ 1996 Equity Incentive Plan
99.2+ 1996 Employee Stock Purchase Plan
99.3+ 1992 Stock Option Plan, as amended
</TABLE>
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+ Filed as an exhibit to the Registration Statement on Form S-1 (No. 333-
09357), as amended through the date hereof.
6.
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[LETTERHEAD OF COOLEY GODWARD LLP APPEAR HERE]
October 4, 1996
Peerless Systems Corporation
2381 Rosecrans Avenue
El Sugundo, CA 90245
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Peerless Systems Corporation, a Delaware Corporation (the
"Company"), of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission covering the offering of
up to 2,617,410 shares of the Company's Common Stock, $.001 par value, (the
"Shares") pursuant to the Non-Plan Option Grants; the 1992 Stock Option Plan, as
amended; the 1996 Equity Incentive Plan; and the 1996 Employee Stock Purchase
Plan (collectively, the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related prospectus, your Certificate of Incorporation and Bylaws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
/s/ Gregory C. Smith
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By: Gregory C. Smith
21184429
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[LETTERHEAD OF COOPERS & LYBRAND APPEARS HERE]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated July 25, 1996, on our audits of the financial
statements of Peerless Systems Corporation as of January 31, 1996, December 31,
1995 and 1994, and for the one month period ended January 31, 1996 and for each
of the three years in the period ended December 31, 1995, appearing in the
registration statement on Form S-1 (SEC File No. 333-09357) of Peerless Systems
Corporation filed with the Securities and Exchange Commission pursuant to the
Securities Act of 1933.
/s/ Coopers & Lybrand L.L.P.
Newport Beach, California
October 4, 1996
