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As filed with the Securities and Exchange Commission on June 17, 1999
Registration No. 333-
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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
APPLIX, INC.
(Exact name of issuer as specified in its charter)
MASSACHUSETTS 04-2781676
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
112 TURNPIKE ROAD, WESTBORO, MASSACHUSETTS 01581-2831
(Address of principal executive offices) (Zip Code)
1994 EQUITY INCENTIVE PLAN
AMENDED AND RESTATED 1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
PATRICK J. RONDEAU, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
(617) 526-6670
(Telephone number, including area code, of agent for service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Securities to Amount to be Proposed Maximum Offering Proposed Maximum Amount of
be Registered Registered Price per Share Aggregate Offering Price Registration Fee
- ---------------------- ------------ ------------------------- ------------------------ ---------------
<S> <C> <C> <C> <C>
Common Stock, 800,000 shares $5.28125(1) $4,225,000.00(1) $1,175
$.00025 par value
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices as reported by Nasdaq on June
14, 1999 in accordance with Securities Act Rule 457(c) and (h).
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1994 Equity Incentive Plan and the Amended and Restated
1995 Employee Stock Purchase Plan of Applix, Inc., a Massachusetts corporation
(the "Registrant"), pursuant to Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934 (as
amended, the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 as filed with the Commission on March 30, 1999.
(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 annual report
referred to in (a) above, comprised of the following:
(i) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1999 as filed with the Commission on May 14, 1999.
(c) Registration Statement on Form 8-A as filed with the Commission
on October 28, 1994.
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 which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of the Massachusetts Business Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against liabilities incurred in connection
with an action or proceeding to which he is or is threatened to be made a party
by reason of such position, unless such person shall have been adjudicated not
to have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation.
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The Registrant's Articles of Organization provide that a director or
officer of the Registrant shall be indemnified by the Registrant against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement reasonably incurred in connection with any litigation or other legal
proceeding brought against him by virtue of his position as a director or
officer of the Registrant unless he is deemed (in the manner provided in the
Articles of Organization) to have not acted in good faith in the reasonable
belief that his action was in the best interest of the Registrant. Expenses
incurred in defending a civil or criminal action, suit or proceeding shall be
advanced by the Registrant to a director or officer, at his request, upon
receipt of an undertaking by the director or officer to repay such amount if it
is ultimately determined that he is not entitled to indemnification.
In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition a court to make an independent determination as to whether
such person is entitled to indemnification. As a condition precedent to the
right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
The Registrant's Articles of Organization further provide that the
indemnification provided therein is not exclusive, and provide that in the event
that the Massachusetts Business Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Registrant must
indemnify those persons to the fullest extent permitted by such law as so
amended.
The Registrant has purchased and maintains insurance coverage under a
policy insuring directors and officers of the Registrant against certain
liabilities which they may incur as directors or officers of the Registrant,
which may include coverage for liabilities arising under the Securities Act.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. UNDERTAKINGS.
1. The 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 therefor) 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
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securities offered would not exceed that which was
registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 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 (i) and (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3,
and 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 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 therein, 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 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 in 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 of 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.
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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 Westboro, Massachusetts, on this 17th day of June 1999.
APPLIX, INC.
By: /s/ Jitendra S. Saxena
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Jitendra S. Saxena
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Applix, Inc. hereby severally
constitute and appoint Edward Terino and Patrick J. Rondeau, and each of them
singly, our true and lawful attorneys with full power to them, and each of them
singly, to sign for us and in our names, in the capacities indicated below, the
Registration Statement on Form S-8 filed herewith and any and all amendments to
said Registration Statement and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable Applix, Inc. to
comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
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WITNESS our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of June 17, 1999.
Signature Title
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/s/ Jitendra S. Saxena Chairman, Chief Executive Officer and
- -------------------------- Director (Principal Executive Officer)
Jitendra S. Saxena
/s/ Edward Terino Senior Vice President, Finance & Administration,
- -------------------------- Chief Financial Officer and Treasurer (Principal
Edward Terino Financial and Accounting Officer)
/s/ Paul J. Ferri Director
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Paul J. Ferri
/s/ Alain J. Hanover Director
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Alain J. Hanover
/s/ David C. Mahoney Director
- --------------------------
David C. Mahoney
/s/ James J. Waldron Director
- --------------------------
James J. Waldron
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EXHIBIT INDEX
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Exhibit
Number
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4.1(1) Restated Articles of Organization.
4.2(2) By-Laws.
4.3(3) Specimen Certificate of Common Stock of the Registrant.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included in the signature pages of this Registration
Statement).
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(1) Incorporated herein by reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1 (File No. 33-85688).
(2) Incorporated herein by reference to Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 33-85688).
(3) Incorporated herein by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 33-85688).
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EXHIBIT 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street
Boston, Massachusetts 02109
(617) 526-6000 * Fax (617) 526-5000
June 17, 1999
Applix, Inc.
112 Turnpike Road
Westboro, MA 01581-2831
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 800,000 shares of the Common Stock, $.0025 par value per
share, of Applix, Inc., a Massachusetts corporation (the "Company"), issuable
under the Company's 1994 Equity Incentive Plan (the "Incentive Plan") and the
Company's Amended and Restated 1995 Employee Stock Purchase Plan (the "Purchase
Plan").
We have examined the Restated Articles of Organization and By-laws of the
Company, and all amendments thereto, and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and 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 latter documents.
Based upon the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Incentive Plan and the Purchase
Plan, as described in the Registration Statement, and such shares, when issued
in accordance with the terms of the Incentive Plan or the Purchase Plan, as the
case may be, will be legally issued, fully paid, and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
Hale and Dorr LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated January 30, 1999 relating to the
financial statements, which appears in Applix, Inc.'s Annual Report on Form 10-K
for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
June 17, 1999
