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Registration No. 333-09157
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
AMENDED REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NETMANAGE, INC.
(Exact name of registrant as specified in its charter)
Delaware 77-0252226
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
10725 North De Anza Boulevard
Cupertino, California 95014
(Address of principal executive offices) (Zip code)
NETMANAGE, INC.
SHARES ISSUABLE PURSUANT TO OUTSTANDING OPTIONS OF
MAXIMUM INFORMATION, INC. ASSUMED BY NETMANAGE, INC.
(Full title of the plan)
Zvi Alon
Chairman of the Board, President
and Chief Executive Officer
NetManage, Inc.
10725 North De Anza Boulevard
Cupertino, California 95014
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/973-7171
This registration statement, including all exhibits and attachments, contains 11
pages. The exhibit index may be found on page 8 of the consecutively numbered
pages of the registration statement.
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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<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
- -----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 128,651 $2.03 $261,161.53 $100.00
Par Value $0.01
(including options
to acquire such
Common Stock)
</TABLE>
- ---------------------
(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee and subject to the minimum registration fee of $100 pursuant
to Section 6(b) of the Securities Act of 1933, as amended. The price is
computed on the basis of the exercise price.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
NetManage, Inc. (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 audited financial statements for the Company's
latest fiscal year ended December 31, 1995 as filed with the 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
Under Section 145 of the Delaware General Corporation Law the Company
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act. The Company's Bylaws require the Company to indemnify its directors and
executive officers, and permit the Company to indemnify its other officers,
employees and other agents, to the extent permitted by Delaware law. The
Company's Bylaws require the Company to indemnify its directors and executive
officers, and permit the Company to indemnify its other officers, employees and
other agents, to the extent permitted by Delaware law. The Bylaws also require
the Company to advance litigation expenses in the case of stockholder derivative
actions or other actions, against an undertaking by the indemnified party to
repay such advances if it is ultimately determined that the indemnified party is
not entitled to indemnification.
The Company's Certificate of Incorporation, as amended, provides that
the liability of its directors for monetary damages shall be eliminated to the
fullest extent permissible under Delaware law. Pursuant to Delaware law, this
includes elimination of liability for monetary damages for reach of the
directors' fiduciary duty of care to the Company and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Company, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for
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any transaction from which the director derived an improper personal benefit,
and for payment of dividends or approval of stock repurchases or redemptions
that are unlawful under Delaware law. The provision also does not affect a
director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Company has entered into agreements with each of its directors and
executive officers to indemnify such persons against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director or officer of the Company or
any of its affiliated enterprises, provided such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the best
interests of the Company and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Item 7. Exemption From Registration Claimed
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;
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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)(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
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
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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 Cupertino, State of California, on July 26,
1996.
NetManage, Inc.
By: /s/ Zvi Alon
------------------------------------
Zvi Alon, Chairman of the Board,
President and Chief Executive
Officer
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POWER OF ATTORNEY
The officers and directors of NetManage, Inc. whose signatures
appear below, hereby constitute and appoint Zvi Alon and Walter Amaral, and each
of them, their true and lawful attorneys and agents, with full power of
substitution, each 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 each of
said attorney and agent, or their 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 July 26, 1996.
Signature Title
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/s/ Zvi Alon
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Zvi Alon Chairman of the Board, President and
Chief Executive Officer (Principal
Executive Officer)
/s/ Walter D. Amaral
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Walter D. Amaral Senior Vice President, Finance, and
Chief Financial Officer (Principal
Financial and Accounting Officer)
/s/ John Bosch
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John Bosch Director
/s/ Uzia Galil
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Uzia Galil Director
/s/ Shelley Harrison, Ph.D.
- -------------------------------
Shelley Harrison, Ph.D. Director
/s/ Darrell Miller
- -------------------------------
Darrell Miller Director
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EXHIBIT INDEX
Sequentially
Numbered Page
-------------
4.1 Amended 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 effective July 24, 1993, as
amended effective September 23, 1993
4.2 Bylaws of the Company is incorporated by --
reference to Exhibit 3.2 to the Company's
Registration Statement on Form S-1 filed
with the Securities and Exchange
Commission effective July 24, 1993, as
amended effective September 23, 1993
5 Opinion re legality 9
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Arthur Andersen LLP 11
24 Power of Attorney (included in signature --
pages to this registration statement)
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[GRAY CARY WARE & FREIDENRICH LETTERHEAD]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (415) 328-6561
FAX (415) 327-3699
EXHIBIT 5
OUR FILE NO.
1140392-900900
July 26, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: NETMANAGE, INC.
REGISTRATION STATEMENT ON FORM S-8 REGISTERING SHARES ISSUABLE
PURSUANT TO OUTSTANDING OPTIONS OF MAXIMUM INFORMATION, INC.
ASSUMED BY NETMANAGE, INC.
Ladies and Gentlemen:
As legal counsel for NetManage, Inc., 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 128,651 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of outstanding options of Maximum Information, Inc. assumed by
NetManage, Inc. (the "Options").
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.
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Securities and Exchange Commission
Page 2
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 128,651
shares of Common Stock which may be issued upon exercise of the Options 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
Options, will be validly issued, fully paid and non-assessable.
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.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 22, 1996
included in NetManage, Inc.'s Form 10-K for the year ended December 31, 1995,
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
July 29, 1996
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