AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 1999.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PEERLESS SYSTEMS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 95-3732595
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2381 ROSECRANS AVENUE
EL SEGUNDO, CALIFORNIA 90245
(310) 536-0908
(Address, Including Zip Code, of Principal Executive Offices)
AUCO, INC. 1994 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AWARD AND AGREEMENT BETWEEN AUCO, INC. AND STEPHEN LI
NON-QUALIFIED STOCK OPTION AWARD AND AGREEMENT BETWEEN AUCO, INC. AND LOUIS COLE
(Full Title of the Plans)
EDWARD A. GAVALDON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2381 ROSECRANS AVENUE
EL SEGUNDO, CALIFORNIA 90245
(310) 536-0908
(Name and Address of Agent for Service)
COPY TO:
GREGORY C. SMITH, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
525 UNIVERSITY AVENUE, SUITE 220
PALO ALTO, CALIFORNIA 94301
(650) 470-4500
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING AGGREGATE REGISTRATION
PRICE PER SHARE (1) OFFERING PRICE (1) FEE (1)
------------------ ------------ ------------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par 420,000 $9. 8125 $4,121,250 $1,421
value $.001 per
share, issuable
pursuant to the
1996 Equity
Incentive Plan
====================== ================== ==================== ================== ===================
</TABLE>
(1)Estimated solely for purposes of calculating the registration fee
pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as
amended (the "Securities Act"), on the basis of the average of the high
and low sale prices for a share of common stock of Peerless Systems
Corporation as reported on the Nasdaq National Market on June 29, 1999.
PART I
The document(s) containing the information specified in Part I of
Form S-8 have been or will be sent or given to employees as specified by
Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Peerless Systems Corporation (the
"Company") with the Securities and Exchange Commission are incorporated
herein by reference into this Registration Statement:
(b) Annual Report on Form 10-K for the year ended January
31, 1999;
(d) Quarterly Report on Form 10-Q for the quarterly period
ended April 30, 1999; and
(f) The description of the Company's Common Stock which is
contained in the Company's Registration Statement on Form
8-A dated August 30, 1996 (File No. 0-21287).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (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 hereof from the date
of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document that is or is deemed to be
incorporated by reference herein modifies or supersedes such previous
statement. Any statement so modified or superseded shall not be deemed to
constitute a part of this Registration Statement, except as so modified or
superseded.
ITEM 4. DESCRIPTION OF THE SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is a Delaware corporation. Section 145 of the General
Corporation Law of the State of Delaware (the "DGCL") provides that any
person may be indemnified by a Delaware corporation against expenses
(including attorneys' fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with any threatened, pending, or completed action, suit, or proceeding in
which such person is made a party by reason of his or her being or having
been a director, officer, employee, or agent of the corporation. The
statute provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors, or otherwise.
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) for liability
under Section 174 of the DGCL, 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 DGCL.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER
4.1* Certificate of Incorporation of Peerless Systems Corporation
4.2* Bylaws of Peerless Systems Corporation
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding the
legality of securities being registered
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5.1 hereto)
24.1 Power of Attorney (included on the signature pages hereto)
* Filed as an exhibit to the Company's Registration Statement on
Form S-1 (No. 333-09357), as amended through the date hereof.
ITEM 9. 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) (ss. 230.424(b) of this chapter) if, in the
aggregate, the changes in volume and price represent no more than a 20
percent 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;
Provided, however, that paragraphs (a)(i) and (a)(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 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 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.
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 June 30, 1999.
PEERLESS SYSTEMS CORPORATION
By /s/ Carolyn Maduza
-------------------------------
Name: Carolyn Maduza
Title: Chief Financial Officer
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.
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Edward A. Gavaldon and Carolyn
Maduza, and each or any one of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her 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 or
she 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 or her
substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
SIGNATURE TITLE DATE
/s/ Edward A. Gavaldon
- ----------------------- Chairman of the June 30, 1999
Edward A. Gavaldon Board of Directors,
President and Chief Executive
Officer
(Principal executive officer)
/s/ Carolyn Maduza
- ----------------------- Senior Vice President June 30, 1999
Carolyn Maduza Finance and
Administration, Chief
Financial Officer,
Treasurer and Secretary
(Principal financial and
accounting officer)
/s/ Robert G. Barrett
- ----------------------- Director June 30, 1999
Robert G. Barrett
/s/ Robert L. North
- ----------------------- Director June 30, 1999
Robert L. North
/s/ Robert Adams
- ----------------------- Director June 30, 1999
Robert Adams
EXHIBIT INDEX
EXHIBIT
NUMBER
4.1* Certificate of Incorporation of Peerless Systems Corporation
4.2* Bylaws of Peerless Systems Corporation
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP regarding
the legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included
in Exhibit 5.1 hereto).
24.1 Power of Attorney (included on the signature pages hereto).
* Filed as an exhibit to the Company's Registration Statement on Form
S-1 (No. 333-09357), as amended through the date hereof.
Exhibit 5.1
[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]
June 30, 1999
Peerless Systems Corporation
2381 Rosecrans Avenue
El Segundo, California 90245
Re: Peerless Systems Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Peerless Systems
Corporation, a Delaware corporation (the "Company"), in connection with the
filing with the Securities and Exchange Commission (the "Commission") of
its Registration Statement on Form S-8 (the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), covering
420,000 shares of common stock, par value $.001 per share, of the Company
(the "Shares"), to be issued by the Company upon exercise of options to be
granted pursuant to the Auco, Inc. 1994 Stock Option Plan, the
Non-Qualified Stock Option Award and Agreement between Auco, Inc. and
Stephen Li, and the Non-Qualified Stock Option Award and Agreement between
Auco, Inc. and Louis Cole (collectively, the "Plans") in connection with
the merger (the "Merger") of a wholly owned subsidiary of the Company with
and into Auco, Inc., a California corporation.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of (i) the Plans, (ii) the Certificate of
Incorporation and the Bylaws of the Company, (iii) the Registration
Statement as proposed to be filed with the Commission, (iv) the form of
certificate representing the Shares and (iv) such records of the Company
and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and such other
documents, certificates and records as we have considered necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as conformed, certified or
photostatic copies and the authenticity of the originals of such latter
documents. In making our examination of documents executed by parties other
than the Company, we have assumed that such parties had the power,
corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such
documents and that such documents constitute or will constitute valid and
binding obligations of such parties. As to any facts material to the
opinions expressed herein which we have not independently established or
verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and
others.
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
Members of our firm are admitted to the bar of the State of
California, and we express no opinion as to the laws of any other
jurisdiction other than the General Corporation Law of the State of
Delaware.
Based upon and subject to the foregoing, and to the
limitations, qualifications, exceptions and assumptions set forth herein,
and assuming (i) the valid issuance of options pursuant to the Plan, (ii)
the conformity of the certificates representing the Shares to the form
thereof examined by us and (iii) the due execution and countersignature of
such certificates, we are of the opinion that upon the issuance and sale of
Shares upon the exercise of the options granted pursuant to the Plan and
receipt by the Company of the exercise price of such options, in the manner
contemplated by the Plan and the Registration Statement, and subject to the
Company completing all actions and proceedings required on its part to be
taken prior to the issuance of the Shares pursuant to the terms of the
Plan, the Shares will be validly issued, fully paid and nonassessable.
This opinion is furnished to you solely for your benefit in
connection with the filing of the Registration Statement and, except as set
forth in the next sentence, is not to be used, circulated, quoted or
otherwise referred to for any other purpose or relied upon by any other
person for any purpose without our prior express written consent. We hereby
consent to the filing of this opinion with the Commission as Exhibit 5.1 to
the Registration Statement.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-8 of our reports dated March 5, 1999,
except for the subsequent event described in Note 14, as to which the date
is April 6, 1999, on our audits of the financial statements and financial
statement schedule of Peerless Systems Corporation as of January 31, 1999
and 1998 and for the each of the three years in the period ended January
31, 1999, which reports are included in the 1999 Annual Report on Form 10-K
of Peerless Systems Corporation for the year ended January 31, 1999.
PRICEWATERHOUSECOOPERS LLP
Woodland Hills, CA
June 30, 1999
