<PAGE>
As filed with the Securities and Exchange Commission on April 17, 1997.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
- --------------------------------------------------------------------------------
XCELLENET, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 57-1749705
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 CONCOURSE PARKWAY
SUITE 850
ATLANTA, GEORGIA 30328
(Address, including zip code, of principal executive offices)
XCELLENET, INC.
1996 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Copy to:
DENNIS M. CRUMPLER WILLIAM H. AVERY
XCELLENET, INC. ALSTON & BIRD LLP
5 CONCOURSE PARKWAY, SUITE 850 ONE ATLANTIC CENTER
ATLANTA, GA 30328 1201 WEST PEACHTREE STREET
(770) 804-8100 ATLANTA, GEORGIA 30309-3424
(Name, address, including zip code, and (404) 881-7000
telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share Offering Price Registration Fee(1)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 655,950 $15.81(2) $10,370,569.50 $3,142.60
- -----------------------------------------------------------------------------------------------------
Common Stock, $.01 par value 2,344,050 $15.125(3) $35,453,756.25 $10,743.56
- -----------------------------------------------------------------------------------------------------
</TABLE>
(1) $5,785.68 of the filing fee was previously held in the registrant's account
with the Commission, and the remaining $8,100.48 of the filing fee was
submitted to the registrant's account with the Commission on April 17, 1997.
(2) The average exercise price per share of options granted to date.
(3) Estimated (pursuant to Rule 457, paragraphs (h) and (c)) as the average of
the high and low sales prices of shares of the Common Stock of the
registrant on the Nasdaq National Market on April 11, 1997 solely for
purposes of calculating the registration fee.
<PAGE>
PART I
------
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this registration statement
will be sent or given to participants in the registrant's (hereinafter the
"Company" or the "Registrant") XcelleNet, Inc. 1996 Long-Term Incentive
Plan (the "Plan") as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
registration statement and are deemed to be a part hereof from the date of
the filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.
(2) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1996.
(3) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A as filed with the
Securities and Exchange Commission on March 2, 1994, including all
amendments or reports filed for the purpose of updating such description.
(4) All 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 hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or
superseded for the purpose of this registration statement to the extent
that a statement contained herein or in any subsequently filed document
which also is, or is deemed to be, incorporated herein by reference
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.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the Company's Amended and Restated Bylaws and
indemnification agreements between the Company and each of its officers and
directors, the Company is obligated to indemnify each of its directors and
officers to the fullest extent permitted by law with respect to all
liability and loss suffered and reasonable expense incurred by such person
in any action, suit or proceeding in which such person was or is made or
threatened to be made a party or is otherwise involved by reason of the
fact that such person is or was a director or officer of the Company. The
Company is also obligated to pay the reasonable expenses of the directors
and officers incurred in defending such proceeding if the indemnified party
agrees to repay all amounts advanced if it is ultimately determined that
such person is not entitled to indemnification.
In addition, the Company's Amended and Restated Articles of
Incorporation provide that the Company's directors shall not be liable to
the Company or its shareholders for monetary damages for breach of a
director's fiduciary duty as a director to the Company and its
shareholders, except to the extent such exemption from liability or
limitation thereof is not permitted under the Georgia Business Corporation
Code. This provision in the Company's Amended and Restated Articles of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of non-
monetary relief will remain available under Georgia law. In addition, each
director continues to be subject to liability for monetary damages for
misappropriation of any corporate opportunity in violation of the
director's duties, for acts or omissions involving intentional misconduct,
for knowing violations of law, for actions leading to improper personal
benefit to the director and for distributions (including payment of
dividends, stock repurchases or redemptions) that are unlawful under
Georgia law. This provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws
or state or federal environmental laws.
The Company holds an insurance policy covering directors and
officers under which the insurer agrees to pay, subject to certain
exclusions, for any claim made against the directors and officers of the
Company for a wrongful act that they may become legally obligated to pay or
for which the Company is required to indemnify the directors or officers,
including liabilities under the Securities Act. The Company believes that
these provisions of its Amended and Restated Articles of Incorporation,
Bylaws and indemnification agreements are necessary to attract and retain
qualified persons as directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company of expenses incurred or paid by a
director, officer or controlling person of the Company in the successful
defense of any action, suit or proceeding) is asserted by such director,
II-2
<PAGE>
officer or controlling person in connection with the securities being
registered, the Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this registration statement are
as follows:
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<C> <S>
4.1 Specimen Stock Certificate for the
Common Stock of the Registrant
(Incorporated herein by reference to
Exhibit 4.01 to Registration Statement
No. 33-76012).
4.2 Amended and Restated Articles of
Incorporation of the Registrant
(Incorporated herein by reference to
Exhibit 3.01 to Registration Statement
No. 33-76012).
4.3 Amended and Restated Bylaws of the
Registrant (Incorporated herein by
reference to Exhibit 3.02 to
Registration Statement No. 33-76012).
4.4 Shareholder Agreement dated June 22,
1990 as amended by the Amendment to
Shareholder Agreement dated February
11, 1994 (the "Amendment") among the
Registrant and the persons listed on
Exhibit A to the Amendment
(Incorporated herein by reference to
Exhibit 10.12 to Registration Statement
No. 33-76012).
5 Opinion of Alston & Bird LLP as to the
legality of the securities being
registered.
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
23.1 Consent of Counsel (contained in the
opinion filed as Exhibit 5 hereof).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney pursuant to which
amendments to this registration
statement may be filed (included on the
signature page contained in Part II
hereof).
</TABLE>
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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) above do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this 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 being 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.
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(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 this 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 Registrant's articles of
incorporation, bylaws, 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.
(signatures on following page)
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<PAGE>
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 Atlanta, State of
Georgia, on April 15, 1997.
XCELLENET, INC.
By: /s/ DENNIS M. CRUMPLER
------------------------------------
Dennis M. Crumpler
Chairman and Chief Executive Officer
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints Dennis M. Crumpler, Corey M. Smith
and Sidney V. Sack, and each of them, his or her true and lawful attorneys-
in-fact and agents, 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, as fully
and 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 his or her 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 indicated on the 15th day of April, 1997.
<TABLE>
<CAPTION>
Signature Capacity
--------- --------
<S> <C>
/s/ DENNIS M. CRUMPLER Chairman of the Board of Directors and
- ---------------------------------- Chief Executive Officer
Dennis M. Crumpler (Principal Executive Officer)
</TABLE>
II-6
<PAGE>
<TABLE>
<S> <C>
/s/ SIDNEY V. SACK Executive Vice President and
- ---------------------------------- Chief Financial Officer
Sidney V. Sack (Principal Financial and Accounting
Officer)
/s/ STEPHEN P. BRADLEY Director
- ----------------------------------
Stephen P. Bradley
/s/ DONALD L. HOUSE Director
- ----------------------------------
Donald L. House
/s/ RICHARD C. MARCUS Director
- ----------------------------------
Richard C. Marcus
Director
- ----------------------------------
Geoffrey A. Moore
/s/ SHEREEF W. NAWAR Director
- ----------------------------------
Shereef W. Nawar
/s/ RICHARD L. NOLAN Director
- ----------------------------------
Richard L. Nolan
/s/ JEFFREY P. PARKER Director
- ----------------------------------
Jeffrey P. Parker
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<C> <S>
4.1 Specimen Stock Certificate for the
Common Stock of the Registrant
(Incorporated herein by reference to
Exhibit 4.01 to Registration Statement
No. 33-76012).
4.2 Amended and Restated Articles of
Incorporation of the Registrant
(Incorporated herein by reference to
Exhibit 3.01 to Registration Statement
No. 33-76012).
4.3 Amended and Restated Bylaws of the
Registrant (Incorporated herein by
reference to Exhibit 3.02 to
Registration Statement No. 33-76012).
4.4 Shareholder Agreement dated June 22,
1990 as amended by the Amendment to
Shareholder Agreement dated February
11, 1994 (the "Amendment") among the
Registrant and the persons listed on
Exhibit A to the Amendment
(Incorporated herein by reference to
Exhibit 10.12 to Registration Statement
No. 33-76012).
5 Opinion of Alston & Bird LLP as to the
legality of the securities being
registered.
23.1 Consent of Counsel (contained in the
opinion filed as Exhibit 5 hereof).
23.2 Consent of Arthur Andersen LLP.
24 Power of Attorney pursuant to which
amendments to this registration
statement may be filed (included on the
signature page contained in Part II
hereof).
</TABLE>
<PAGE>
EXHIBIT 5
[Alston & Bird Letterhead]
April 17, 1997
XcelleNet, Inc.
5 Concourse Parkway, Suite 850
Atlanta, Georgia 30328
Re: Form S-8 Registration Statement of XcelleNet, Inc. -- 1996 Long-
Term Incentive Plan (the "Plan")
Ladies and Gentlemen:
This opinion is given in connection with the filing by XcelleNet,
Inc., a Georgia corporation (the "Company"), of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, in connection with
the registration of 3,000,000 shares of the $.01 par value Common Stock of
the Company (the "Shares") that may be sold or issued upon the grant or
exercise of awards pursuant to the Plan. This Opinion Letter is rendered
pursuant to Item 8 of Form S-8 and Item 601(b)(5) of Regulation S-K.
We have examined such corporate records and documents as we deemed
relevant and necessary to enable us to give the opinion set forth herein,
including the Articles of Incorporation and Bylaws of the Company, as
amended, and resolutions of the Board of Directors of the Company
authorizing the actions to be taken.
In conducting our examination we assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such documents.
Based upon the foregoing, we are of the opinion that the Shares, when
sold or issued upon the grant or exercise of awards pursuant to and in
accordance with the terms and conditions of the Plan, will be duly
authorized, legally issued, fully paid and nonassessable under the Georgia
Business Corporation Code as in effect on this date.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
ALSTON & BIRD LLP
By: /s/ Alston & Bird LLP
_____________________
<PAGE>
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 23,
1997 included in XcelleNet, Inc.'s annual report on Form 10-K for the
fiscal year ended December 31, 1996 and to all references to our firm
included in this registration statement.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Atlanta, Georgia
April 17, 1997
