<PAGE> 1
As filed with the Securities and Exchange Commission on May 24, 1999
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXPERT SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 65-0359860
(State of Incorporation) (I.R.S. Employer Identification Number)
802 DOUGLAS ROAD
SIXTH FLOOR
CORAL GABLES, FL 33134
(305) 567-9990
(Address, including zip code, of Principal Executive Offices)
EXPERT SOFTWARE, INC. 1997 STOCK OPTION PLAN FOR DIRECTORS
(Full Title of the Plan)
KENNETH P. CURRIER
CHIEF EXECUTIVE OFFICER
EXPERT SOFTWARE, INC.
802 DOUGLAS ROAD
SIXTH FLOOR
CORAL GABLES, FL 33134
(305) 567-9990
(Name, Address, and Telephone Number, Including Area Code, of Agent For Service)
With copies to:
John J. Egan III, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share Price
------------------------- ------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par 60,000 $ 1.00 (2) $ 60,000 $ 16.68
value $.01 per share
40,000 $ 1.32 (2) $ 52,800 $ 14.68
60,000 $ 2.00 (2) $120,000 $ 33.36
20,000 $ 2.031 (2) $ 40,620 $ 11.29
10,000 $ 3.563 (2) $ 35,630 $ 9.91
60,000 $ 2.4531(3) $147,186 $ 40.92
============================ ========= ========= =========== =======
Total 250,000 ---- $456,236.00 $130.00
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Registrant's 1997 Stock Option Plan for Directors in the event of a
stock dividend, reverse stock split, split-up, recapitalization or other
similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
determining the amount of the registration fee and is based on the price
at which outstanding stock options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act solely for purposes of determining the registration fee
and is based on the average of the high and low sales prices of the
common stock of Expert Software, Inc., par value $.01 per share (the
"Common Stock"), as reported on the NASDAQ National Market on May 19,
1999.
2
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Expert Software, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference as of their respective dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(c) the Company's Current Report on Form 8-K filed on April 29,
1999; and
(d) the description of the Company's Common Stock contained in its
registration statement on Form 8-A, filed with the Commission
on February 28, 1995, as amended, under Section 12 of the
Exchange Act and any amendments or reports filed for the
purpose of updating such description.
In addition, all documents subsequently filed with the Commission 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 hereunder have been sold or which deregisters all securities
then 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.
Any statement contained in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein 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.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares to be offered hereby will be passed upon for
the Company by Goodwin, Procter & Hoar LLP, Boston, Massachusetts. John J. Egan
III, whose professional corporation is a partner in Goodwin, Procter & Hoar LLP,
is the beneficial owner of 1,000 shares of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, as amended
(the "DGCL"), the Company has the power to indemnify directors and officers
under certain prescribed circumstances and subject to certain limitations
against certain costs and expenses, including attorneys' fees actually and
reasonably incurred in connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which any of them is a
party by reason of his or her being a director or officer of the Company if it
is determined that he or she acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
3
<PAGE> 4
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article VII of the Company's Restated Certificate of Incorporation
states that:
A Director of the Company shall not be personally liable to
the Company or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability (i) for any breach
of the Director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the
Director derived an improper personal benefit. If the DGCL is amended
after the effective date of this Restated Certificate of Incorporation
to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a Director of
the Company shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Company, or (ii) an amendment to the DGCL, shall
not adversely affect any right or protection existing at the time of
such repeal or modification with respect to any acts or omissions
occurring before such repeal or modification of a person serving as a
Director at the time of such repeal or modification.
Article V of the Company's Amended and Restated By-laws further states
that:
1. Definitions. For purposes of this Article: (a) "Officer" means any
person who serves or has served as a Director or Officer of the Company
or in any other office filled by election or appointment by the
stockholders or the Board of Directors of the Company and any heirs,
executors, administrators or personal representatives of such person;
(b) "Non-Officer Employee" means any person who serves or has served as
an employee of the Company, but who is not or was not an Officer, and
any heirs, executors, administrators or personal representatives of
such person; (c) "Proceeding" means any threatened, pending, or
completed action, suit or proceeding (or part thereof), whether civil,
criminal, administrative, arbitrative or investigative, any appeal of
such an action, suit or proceeding, and any inquiry or investigation
which could lead to such an action, suit, or proceeding; and (d)
"Expenses" means any liability fixed by a judgment, order, decree or
award in a Proceeding, any amount reasonably paid in settlement of a
Proceeding and any professional fees and other expenses and
disbursements reasonably incurred in a Proceeding or in settlement of a
Proceeding, including fines, taxes and penalties relating thereto.
2. Officers. Except as provided in Section 4 of this Article V, each
Officer of the Company shall be indemnified and held harmless by the
Company to the fullest extent authorized by the General Corporation Law
of the State of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide
prior to such amendment) against any and all Expenses incurred by such
Officer in connection with any Proceeding in which such Officer is
involved as a result of serving or having served (a) as an Officer or
employee of the Company, (b) as a director, officer or employee of any
subsidiary of the Company, or (c) in any capacity with any other
corporation, organization, partnership, joint venture, trust or other
entity at the written request or direction of the Company, including
service with respect to employee or other benefit plans, and shall
continue as to an Officer after he or she has ceased to be an Officer
and shall inure to the benefit of his or her heirs, executors,
administrators and personal representatives; provided, however, that
the Company shall indemnify any such Officer seeking indemnification in
connection with a Proceeding initiated by such Officer only if such
Proceeding was authorized by the Board of Directors of the Company.
3. Non-Officer Employees. Except as provided in Section 4 of this
Article V, each Non-Officer Employee of the Company may, in the
discretion of the Board of Directors, be indemnified by the Company to
the fullest extent authorized by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended (but,
in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights
than said law permitted the Company to provide prior to such amendment)
against any or all Expenses incurred by such Non-Officer Employee in
connection with any Proceeding in which such Non-Officer Employee is
involved as a result of serving or having served (a) as a Non-Officer
Employee of the Company, (b) as a director, officer or employee of any
subsidiary of the Company, or (c) in any capacity with any other
corporation,
4
<PAGE> 5
organization, partnership, joint venture, trust or other entity at the
request or direction of the Company, including service with respect to
employee or other benefit plans, and shall continue as to a Non-Officer
Employee after he or she has ceased to be a Non-Officer Employee and
shall inure to the benefit of his or her heirs, personal
representatives, executors and administrators; provided, however, that
the Company may indemnify any such Non-Officer Employee seeking
indemnification in connection with a Proceeding initiated by such
Non-Officer Employee only if such Proceeding was authorized by the
Board of Directors of the Company.
4. Good Faith. No indemnification shall be provided pursuant to this
Article V to an Officer or to a Non-Officer Employee with respect to a
matter as to which such person shall have been finally adjudicated in
any Proceeding not to have acted in good faith and in a manner he or
she 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. In the
event that a Proceeding is compromised or settled so as to impose any
liability or obligation upon an Officer or Non-Officer Employee, no
indemnification shall be provided pursuant to this Article V to said
Officer or Non-Officer Employee with respect to a matter if there be a
determination that with respect to such matter such person did not act
in good faith and in a manner he or she 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 determination shall be made by (i) a
majority vote of those Directors who are not involved in such
Proceeding (the "Disinterested Directors"); (ii) by stockholders; or
(iii) if directed by a majority of Disinterested Directors, by
independent legal counsel in a written opinion. However, if more than
half of the Directors are not Disinterested Directors, the
determination shall be made by (i) a majority vote of a committee of
one or more disinterested Director(s) chosen by the Disinterested
Director(s) at a regular or special meeting; (ii) by stockholders; or
(iii) by independent legal counsel in a written opinion.
5. Prior to Final Disposition. Unless otherwise determined by (i) the
Board of Directors, (ii) if more than half of the Directors are
involved in a Proceeding by a majority vote of a committee of one or
more Disinterested Director(s) chosen in accordance with the procedures
specified in Section 4 of this Article or (iii) if directed by the
Board of Directors, by independent legal counsel in a written opinion,
any indemnification extended to an Officer or Non-Officer Employee
pursuant to this Article V shall include payment by the Company of
Expenses incurred in defending a Proceeding in advance of the final
disposition of such Proceeding upon receipt of an undertaking by such
Officer or Non-Officer Employee seeking indemnification to repay such
payment if such Officer or Non-Officer Employee shall be adjudicated or
determined not to be entitled to indemnification under this Article V.
6. Contractual Nature of Rights. The foregoing provisions of this
Article V shall be deemed to be a contract between the Company and each
Officer and Non-Officer Employee who serves in such capacity at any
time while this Article V is in effect, and any repeal or modification
thereof shall not affect any rights or obligations then existing with
respect to any state of facts then or theretofore existing or any
Proceeding theretofore or thereafter brought based in whole or in part
upon any such state of facts. If a claim for indemnification or
advancement of expenses hereunder by an Officer or Non-Officer Employee
is not paid in full by the Company within 60 days after a written claim
for indemnification or documentation of expenses has been received by
the Company, such Officer or Non-Officer Employee may at any time
thereafter bring suit against the Company to recover the unpaid amount
of the claim, and if successful in whole or in part, such Officer or
Non-Officer Employee shall also be entitled to be paid the expenses of
prosecuting such claim. The failure of the Company (including its Board
of Directors or any committee thereof, independent legal counsel, or
stockholders) to make a determination concerning the permissibility of
such indemnification or advancement of expenses under this Article V
shall not be a defense to the action and shall not create a presumption
that such indemnification or advancement is not permissible.
7. Non-Exclusivity of Rights. The provisions in respect of
indemnification and the payment of expenses incurred in defending a
Proceeding in advance of its final disposition set forth in this
Article V shall not be exclusive of any right which any person may have
or hereafter acquire under any statute, provision of the Certificate or
these By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
8. Insurance. The Company may maintain insurance, at its expense, to
protect itself and any Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Company
or any such Officer or Non-Officer Employee, or arising out of any such
status, whether or not the Company would have the power to indemnify
such person against such liability under the General Corporation Law of
the State of Delaware or the provisions of this Article V.
5
<PAGE> 6
The Company carries directors' and officers' liability insurance
covering its directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Securities and Exchange Commission has
expressed its opinion that such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) The following is a complete list of exhibits filed or
incorporated by reference as part of this Registration Statement:
4.1 Restated Certificate of Incorporation of the Company
(1)
4.2 Amended and Restated By-Laws of the Company (1)
4.3 Shareholder Rights Agreement between the Company and
the First National Bank of Boston dated November 9,
1995 (2)
4.4 Amendment No. 1 to Shareholder Rights Agreement,
dated as of March 3, 1999, by and between the Company
and BankBoston, N.A. (as successor to the First
National Bank of Boston) (3)
4.5 Amendment No. 2 to Shareholder Rights Agreement,
dated as of April 19, 1999, by and between the
Company and BankBoston, N.A. (as successor to the
First National Bank of Boston) (4)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of securities being registered *
23.1 Consent of Grant Thornton LLP *
23.2 Consent of Arthur Andersen LLP *
23.3 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto)
24.1 Power of Attorney (included on the signature page of
this Registration Statement)
99.1 Expert Software, Inc. 1997 Stock Option Plan for
Directors *
- ----------
* Filed herewith.
(1) Incorporated by reference to the designated exhibit
of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995.
(2) Incorporated by reference to Exhibit 10.12 of the
Company's Form 8-K (filed November 12, 1995).
(3) Incorporated by reference to Exhibit 4.1 of the
Company's Form 8-K (filed March 9, 1999).
(4) Incorporated by reference to Exhibit 4.1 of the
Company's Form 8-K (filed April 29, 1999).
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
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 decease 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 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; and
6
<PAGE> 7
(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) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the undersigned 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, 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) 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 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.
(c) 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 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 Act and will be governed by the final
adjudication of such issue.
7
<PAGE> 8
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
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 Coral Gables, State of Florida, on this 24th day of
May, 1999.
EXPERT SOFTWARE, INC.
By: /s/ KENNETH P. CURRIER
-------------------------
Kenneth P. Currier
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), each person whose signature appears below does hereby make, constitute
and appoint Kenneth P. Currier and Susan A. Currier and each of them singly,
with full power to act without the other, his true and lawful attorney-in-fact
and agent, in his name, place and stead to execute on his behalf, as a director
and/or officer of Expert Software, Inc. (the "Company"), the Registration
Statement of the Company on Form S-8 (the "Registration Statement") for the
registration of shares of the Company's common stock, par value $.01 per share,
in connection with the Expert Software, Inc. 1997 Stock Option Plan for
Directors, and any and all amendments (including post-effective amendments and a
further registration statement conforming to Rule 462(b)) of the Securities Act)
to the Registration Statement, and to file the same with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission (the "Commission") and any and all other instruments which either of
said attorneys-in-fact and agents deem necessary or advisable to enable the
Company to comply with the Securities Act, the rules, regulations and
requirements of the Commission in respect thereof, and the securities or Blue
Sky laws of any State or other governmental subdivision, giving and granting to
each of said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to all intents as he might or could do
if personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title Date
/s/ KENNETH P. CURRIER Director, Chief Executive May 24, 1999
- -------------------------- Officer, Secretary (Principal
Kenneth P. Currier Executive Officer, Acting
Principal Financial Officer
and Acting Principal Accounting
Officer)
/s/ SUSAN A. CURRIER Director, President May 24, 1999
- --------------------------
Susan A. Currier
/s/ DOUGLAS G. CARLSTON Director May 24, 1999
- --------------------------
Douglas G. Carlston
/s/ A. BRUCE JOHNSTON Director May 24, 1999
- --------------------------
A. Bruce Johnston
/s/ WILLIAM H. LANE III Director May 24, 1999
- --------------------------
William H. Lane III
/s/ MICHAEL S. MURRAY Director May 24, 1999
- --------------------------
Michael S. Murray
8
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<S> <C>
4.1 Restated Articles of Incorporation of the Company (1)
4.2 Amended and Restated By-Laws of the Company (1)
4.3 Shareholder Rights Agreement between the Company and the First
National Bank of Boston dated November 9, 1995 (2)
4.4 Amendment No. 1 to Shareholder Rights Agreement, dated as of
March 3, 1999, by and between the Company and BankBoston, N.A.
(as successor to the First National Bank of Boston) (3)
4.5 Amendment No. 2 to Shareholder Rights Agreement, dated as of
April 19, 1999, by and between the Company and BankBoston,
N.A. (as successor to the First National Bank of Boston) (4)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
securities being registered * 10
23.1 Consent of Grant Thornton LLP * 12
23.2 Consent of Arthur Andersen LLP * 13
23.3 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
99.1 Expert Software, Inc. 1997 Stock Option Plan for Directors * 14
</TABLE>
- ----------
* Filed herewith.
(1) Incorporated by reference to the designated exhibit
of the Company's Annual Report on Form 10-K for the
year ended December 31, 1995.
(2) Incorporated by reference to Exhibit 10.12 of the
Company's Form 8-K (filed November 12, 1995).
(3) Incorporated by reference to Exhibit 4.1 of the
Company's Form 8-K (filed March 9, 1999).
(4) Incorporated by reference to Exhibit 4.1 of the
Company's Form 8-K (filed April 29, 1999).
<PAGE> 1
EXHIBIT 5.1
May 24, 1999
Expert Software, Inc.
802 Douglas Road
Sixth Floor
Coral Gables, Florida 33134-3128
Re: Expert Software, Inc. 1997 Stock Option Plan for Directors
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant to
the Securities Act of 1933, as amended (the "Act"), of 250,000 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
Expert Software, Inc. (the "Company") which may be issued pursuant to awards
granted under the Company's 1997 Stock Option Plan for Directors (the "Plan").
We have acted as counsel to the Company in connection with the registration
of the Shares under the Act. In connection with rendering this opinion, we have
examined the Restated Certificate of Incorporation and the Amended and Restated
By-laws of the Company, each as amended to date; a registration statement on
Form S-8 under the Act relating to the Shares (the "Registration Statement");
and such records of the corporate proceedings of the Company as we deemed
material; and such other certificates, receipts, records and documents as we
considered necessary for the purposes of this opinion. In our examination, we
have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as certified,
photostatic or facsimile copies, the authenticity of the originals of such
copies and the authenticity of telephonic confirmations of public officials and
others. As to facts material to our opinion, we have relied upon certificates or
telephonic confirmations of public officials and certificates, documents,
statements and other information of the Company or representatives or officers
thereof.
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America, the Commonwealth of Massachusetts and the
General Corporation Law of the State of Delaware.
<PAGE> 2
Expert Software, Inc.
May 24, 1999
Page 2
Based upon the foregoing, we are of the opinion that upon the issuance and
delivery of, and payment for, the Shares in accordance with the terms of the
Registration Statement, the Plan and the option agreements entered into pursuant
to the Plan, the Shares will be legally issued, fully paid and non-assessable
shares of the Company's Common Stock.
The foregoing opinion assumes that all requisite steps will be taken to
comply with the requirements of the Act and applicable requirements of state
laws regulating the offer and sale of securities. The foregoing opinion further
assumes that the purchase price paid for the Shares is in excess of the par
value thereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us with respect to this opinion
under the heading "Interests of Named Experts and Counsel" in the Prospectus
which is a part of such Registration Statement. In giving such consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Act.
Very truly yours,
/s/ Goodwin Procter and Hoar LLP
-------------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We have issued our reports dated February 17, 1999, accompanying the
consolidated financial statements and schedule included in the Annual Report of
Expert Software, Inc. on Form 10-K for the year ended December 31, 1998. We
hereby consent to the incorporation by reference of said reports in the
Registration Statement of Expert Software, Inc.'s 1997 Stock Option Plan for
Directors on Form S-8
/s/ Grant Thornton LLP
Miami, Florida
May 18, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of Expert
Software, Inc. of our reports dated February 6, 1998, included in Expert
Software, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1998, and to all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
Miami, Florida
May 24, 1999
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EXHIBIT 99.1
EXPERT SOFTWARE, INC.
1997 STOCK OPTION PLAN FOR DIRECTORS
1. PURPOSE:
This 1997 Stock Option Plan for Directors (the "Plan") is intended to serve as a
means to compensate the Directors of Expert Software, Inc., (the "Company") or
its subsidiaries (as hereafter defined) and to enable the individuals to whom
options are granted (the "Optionees") to acquire or increase a proprietary
interest in the success of the Company. The Company intends that this purpose
will be effected by granting nonqualified stock options ("Nonqualified Options")
to Directors who are not employed by the Company ("Outside Directors")
respectively as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"). The term "subsidiaries" includes any corporations in which
stock possessing FIFTY (50) PERCENT or more of the total combined voting power
of all classes of stock is owned directly or indirectly by the Company.
2. OPTIONS TO BE GRANTED AND ADMINISTRATION
(a) Options granted under the Plan shall be Nonqualified Options and shall
be designated as such at the time of grant.
(b) The Plan shall be administered by either the entire Board of
Directors or a committee of the Board of Directors of the Company
(the "Committee") of not less than TWO (2) Directors of the
Company appointed by the Board of Directors; provided that, to the
extent required by Rule 16b-3 promulgated under the Securities
Exchange Act of 1934 as amended (the "Act') or any successor
provision ("Rule 16b-3") or Section 162(m) of the Code, with
respect to specific grants of options, each member of the
Committee shall be a "Non-Employee Director" within the meaning of
Rule 16b-3, and an "outside director" within the meaning of
Section 162(m) of the Code. Action by the Committee shall require
the affirmative vote of a majority of all its members.
(c) Subject to the terms and conditions of the Plan, the Committee
shall have the full and complete authority in its discretion,
consistent with and subject to the express provisions of the Plan:
(i) To determine from time to time the options to be granted to
eligible individuals under the Plan and to prescribe the terms and
provisions (which need not be identical) of options granted under
the Plan to such individuals, including but not limited to, the
time or times of grant, the individuals to whom options may be
granted, the number of shares to be covered by any option, the
vesting schedule, the exercise price of shares covered by any
option, the power to accelerate vesting of options or to extend
the exercise period.
(ii) To construe and interpret the Plan and any grants thereunder
and to establish, amend, and revoke rules and regulations for
administration of the Plan. In this connection, the Committee may
correct any defect or supply any omission, or reconcile any
inconsistency in the Plan, in any option agreement, or in any
related agreements, in the manner and to the extent it shall deem
necessary or expedient to make the Plan fully effective. All
decisions and determinations by the Committee in the exercise of
this power shall be final and binding upon the Company and the
Optionees; and
(iii) Generally, to exercise such powers and to perform such acts
as are deemed necessary or desirable to promote the best interests
of the Company with respect to the Plan.
3. STOCK
(a) The stock subject to the options granted under the Plan shall be
shares of the Company's authorized but unissued Common Stock, par
value $.01 per share (the "Common Stock"). The total number of
shares for which options
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may be granted under the Plan shall not exceed an aggregate of TWO
HUNDRED FIFTY THOUSAND (250,000) shares of Common Stock. Such
number shall be subject to adjustment as provided in Section 7
hereof.
(b) Whenever any outstanding option under the Plan expires, is
canceled or is otherwise terminated (other than b,, exercise) the
shares of Common Stock allocable to the unexercised portion of
such option may again be the subject of options under the Plan.
4. ELIGIBILITY
(a) Nonqualified Options may be granted to all Outside Directors of
the Company or its Subsidiaries, but only to the extent provided
in Section 4(b) below.
(b) Notwithstanding any other provision of the Plan, each member of
the Board of Directors shall be granted options only in accordance
with, and subject to the provisions of this Section 4(b):
(i) Each individual who shall be elected by the stockholders of
the Company to the. Board of Directors, or appointed by the Board
of Directors as a Director, after the Plan Date, shall
automatically be granted, effective upon such election or
appointment, a Nonqualified Option to purchase THIRTY THOUSAND
(30,000) shares of Common Stock. All options granted under this
Section shall vest in calendar quarterly installments over FOUR
(4) years, and shall have a per share exercise price which is
equal to the per share fair market value of the Common Stock on
the date of grant.
(ii) Each individual who is serving as a Director on January 1,
1998, or on any January 1st thereafter, shall be automatically
granted, effective upon each January 1st during his/her service as
Director, a Nonqualified Option to purchase FIVE THOUSAND (5,000)
shares of Common Stock. All options granted under this Section
shall vest in calendar quarterly installments over ONE (1) year,
and shall, have a per share exercise price which is equal to the
per share fair market value of the Common Stock on the date of
grant. Since January 1st is a national holiday, the per share fair
market value of the Common Stock on the last business day
preceding January 1st shall apply.
(iii) Each Director may elect not to receive the options granted
under this Section 4(b) by written notice delivered to the
Committee prior to the date such options would otherwise be
granted hereunder.
5. TERMS OF THE OPTION AGREEMENTS
Subject to the terms and conditions of the Plan, each option agreement
shall contain such provisions as the Committee shall, from time to time, deem
appropriate. Option agreements need not be identical, but each option agreement
by appropriate language shall include the substance of all of the following
provisions:
(a) Expiration; Termination of Services as Director
(i) Notwithstanding any other provisions of the Plan or of any
option agreement, each option shall expire on the date specified
in the option agreement, but not later than the TENTH (10th )
anniversary of the date on which the option was granted.
(ii) If an Optionee's service as a Director with the Company and
its subsidiaries is terminated by resignation, expiration of term
without re-election, or for any other reason, any outstanding
Nonqualified Option granted to such Optionee under the Plan shall
be exercisable, to the extent vested at that time, only for a
period of NINETY (90) days following such event, subject to the
expiration date of such option, provided however, that the
Committee may, in its sole discretion, extend the exercise period
for any such options.
(b) Minimum Shares Exercisable. The minimum number of shares with
respect to which an option may be exercised at any one time shall
be ONE HUNDRED (100) shares, or such lesser number as is subject
to exercise under the option at the time.
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(c) Exercise. Each option shall be exercisable in such installments
(which need not be equal) and at such times as may be designated
by the Committee. To the extent not exercised, installments shall
accumulate and be exercisable, in whole or in part, at any time
after becoming exercisable, but not later than the date the option
expires.
(d) Purchase Price. The purchase price per share of Common Stock
subject to each option shall be determined by the Committee;
provided however, that the purchase price per share of Common
Stock subject to each Nonqualified Option shall not be less than
the fair market value of the Common Stock on the date such
Nonqualifed Option is granted. For the purposes of the Plan. the
fair market value of the Common Stock shall be determined in good
faith by the committee; provided however, that (i) if the Common
Stock is quoted on the Nasdaq Stock Market, Inc. ("Nasdaq") on the
date the option is granted, the fair market value shall not be
less than the average of the highest bid and lowest asked prices
of the Common Stock on Nasdaq reported for that date, or (ii) if
the Common Stock is admitted to trading on a national securities
exchange or the Nasdaq Stock Market, Inc. on the date the option
is granted, the fair market value shall not be less than the
closing price reported for the Common Stock on such exchange or
system for such date, or, if no sales were reported for such date,
for the last date preceding such date for which a sale was
reported.
(e) Rights of Optionees. No Optionee shall be deemed for any purpose
to be an owner of any shares of Common Stock subject to any option
unless and until (i) the option shall have been exercised pursuant
to the terms thereof, (ii) all requirements under applicable law
and regulations shall have been complied with to the satisfaction
of the Company, (iii) the Company shall have issued and delivered
the shares to the Optionee, and (iv) the Optionee's name shall
have been entered as a stockholder of record on the books of the
Company. Thereupon, the Optionee shall have full voting, dividend
and other ownership rights with respect to such shares of Common
Stock.
(f) Transfer. No option granted hereunder shall be transferable by the
Optionee other than by will or by the laws of descent and
distribution, and such option may be exercised during the
Optionee's lifetime only by the Optionee, or his or her guardian
or legal representative. Notwithstanding the foregoing, the
Committee may permit the Optionee to transfer, without
consideration for the transfer, his or her Nonqualified Options to
members of his, or her immediate family, to trusts for the benefit
of such family members, or to partnerships in which such family
members are the only partners, provided that the transferee agrees
in writing with the Company to be bound by all of the terms and
conditions of this Plan and the applicable Option.
6. METHOD OF EXERCISE; PAYMENT OF PURCHASE PRICE.
(a) Any option granted under the Plan, to the extent then exercisable,
may be exercised by the Optionee in whole or subject to Section
5(b) hereof in part by delivering to the Company on any business
day a written notice specifying the number of shares of Common
Stock the Optionee then desires to purchase (the "Notice").
(b) Payment for the shares of Common Stock purchased pursuant to the
exercise of an option shall be made either: (i) in cash, or by
certified or bank check or other payment acceptable to the Company
equal to the option exercise price for the number of shares
specified in the Notice (the "Total Option Price"), (ii) if
authorized by the applicable option agreement and if permitted by
law, by delivery of shares of Common Stock which have been held by
the Optionee for at least six months that the Optionee may freely
transfer having a fair market value, determined by reference to
the provisions of Section 5(d) hereof, equal to or less than the
Total Option Price, plus cash in an amount equal to the excess, if
any, of the Total Option Price over the fair market value of such
shares of Common Stock, or (iii) if authorized by the applicable
option agreement, by the Optionee delivering the Notice to the
Company together with irrevocable instructions to a broker to
promptly deliver the Total Option Price to the Company in cash or
by other method of payment acceptable to the Company; provided,
however, that the Optionee and the broker shall comply with such
procedures and enter into such agreements of indemnity or other
agreements as the Company shall prescribe as a condition of
payment under this Clause (iii).
(c) The delivery of certificates representing shares of Common Stock
to be purchased pursuant to the exercise of an option will be
contingent upon the Company's receipt of the Total Option Price
and of any written representations
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from the Optionee required by the Committee, and the fulfillment
of any other requirements contained in the option agreement or
applicable provision of law.
7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) If the shares of the Company's Common Stock as a whole are
increased. decreased, changed into or exchanged for a different
number or kind of shares or securities of the Company. whether
through merger, consolidation, reorganization, recapitalization,
reclassification, stock dividend, stock split, combination of
shares, exchange of shares, change in corporate structure or the
like, an appropriate and proportionate adjustment shall be made in
the number and kind of shares subject to the Plan, and in the
number. kind, and per share exercise price of shares subject to
unexercised options or portions thereof granted prior to any such
change. In the event of any such adjustment in an outstanding
option, the Optionee thereafter shall have the right to purchase
the number of shares under such option at the per share price, as
so adjusted, which the Optionee could purchase at the total
purchase price applicable to the option immediately prior to such
adjustment.
(b) Adjustments under this Section 7 shall be determined by the
Committee and such determinations shall be final, binding and
conclusive. The Committee shall have the discretion and power in
connection with such adjustments or otherwise to determine and to
make effective provisions for acceleration of the time or times at
which any option or portion thereof shall become exercisable under
this Section. No fractional shares of Common Stock shall be issued
under the Plan on account of any such adjustments or otherwise.
8. CHANGE OF CONTROL PROVISIONS.
(a) Impact of Event. Notwithstanding any other provision of the Plan
to the contrary, in the event of a Change in Control:
(i) All Options outstanding as of the date such Change of Control
occurs, shall become fully vested and exercisable.
(b) Definition of Change of Control. A "Change of Control" means the
happening of any of the following events:
(i) Any "person" as such term is used in Sections 13(d) and 14(d)
of the Act (other than the Company, any of its Subsidiaries, or
any trustee, fiduciary or other person, shall become the
"beneficial owner,(as- such term is defined in Rule 13d-3 under
the Act), directly or indirectly of securities of the Company
representing FIFTY-ONE (51%) PERCENT or more of the combined
voting power of the Company's then outstanding securities having
the right to vote in an election of the Company's Board of
Directors ("Voting Securities") (in such case other than as a
result of an acquisition of securities directly from the Company);
or
(ii) Persons who, as of the effective date of Change of Control,
constitute the Company's Board of Directors (the "Incumbent
Directors") cease for any reason, including without limitation, as
a result of a tender offer, proxy contest, merger, or similar
transaction, to constitute at least a majority of the Board,
provided that any person becoming a director of the Company
subsequent to the Effective Date whose election was approved by a
vote of at least a majority of the Incumbent Directors or whose
nomination for election was approved by the Incumbent Directors
shall, for purposes of this Plan, be considered an Incumbent
Director; or
(iii) The stockholders of the Company shall approve (a) any
consolidation or merger of the Company, or any Subsidiary where
the stockholders of the Company, immediately prior to the
consolidation or merger, would not, immediately after the
consolidation or merger, beneficially own ( as such term is
defined in Rule 13d-3 under the Act), directly or indirectly,
shares representing in the aggregate FIFTY-ONE (51%) PERCENT or
more of the voting shares of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate
parent corporation, if any), (b) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all of
the assets of the Company, or (c) any plan or proposal for the
liquidation or dissolution of the Company.
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Notwithstanding the foregoing, a "Change of Control" shall not be deemed
to have occurred for purposes of the foregoing clause (i) solely as the result
of an acquisition of securities by the Company which, by reducing the number of
shares of voting securities outstanding, increase the proportionate number of
shares of voting securities beneficially owned by any person to FIFTY-ONE (51%)
PERCENT or more of the combined voting power of all then outstanding voting
securities, provided however, that if any person referred to in this sentence
shall thereafter become the beneficial owner of any additional shares of voting
securities (other than pursuant to a stock split, stock dividend, or similar
transaction or as a result of an acquisition of securities directly from the
Company), then a "Change of Control" shall be deemed to have occurred for
purposes of the foregoing clause (i).
9. TAX WITHHOLDING
Each Optionee shall, no later than the date as of which the value of any
option granted hereunder or of any Common Stock issued upon the exercise of such
option first becomes includable in the gross income of the Optionee for Federal
income tax purposes (the "Tax Date") pay to the Company, or make arrangements
satisfactory to the Company regarding payment of any Federal, State, or local
taxes of any kind required by law to be withheld with respect to such income.
10. AMENDMENT OF THE PLAN
The Board of Directors may, at any time, amend or discontinue the Plan
and the Committee may, at any time, amend or cancel any outstanding Options (or
provide substitute options at the same or reduced exercise or purchase price or
with no exercise or purchase price, but such price, if any, must satisfy the
requirements which would apply to the substitute or amended Option if it were
then initially granted under this Plan) for the purpose of satisfying changes in
law or for any other lawful purpose, but no such action shall adversely affect
rights under any outstanding Option without the holder's consent. Plan
amendments shall be ratified by the stockholders.
11. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board of Directors nor the
submission of the Plan to the stockholders of the Company for approval shall be
construed as creating any limitations on the power of the Board of Directors to
adopt such other incentive arrangements as it may deem desirable, including
without limitation, the granting of stock or stock options otherwise than under
the Plan, and such arrangements may be either applicable generally or only in
specific cases. Neither the Plan nor any option granted hereunder shall be
deemed to confer upon any member of the Board of Directors any right to
continued directorship of the Company or its Subsidiaries.
12. GOVERNMENT AND OTHER REGULATIONS; GOVERNING LAW
(a) The obligation of the Company to sell and deliver shares of Common
Stock with respect to options granted under the Plan shall be
subject to all applicable laws, rules, and regulations, including
all applicable Federal and State securities laws, and the
obtaining of all such approvals by governmental agencies as may be
deemed necessary or appropriate by the Committee.
(b) The Plan shall be governed by Delaware law, except to the extent
such law is preempted by Federal law.
13. EFFECTIVE DATE OF PLAN; STOCKHOLDER APPROVAL
The Plan shall become effective upon the date it is approved by the Board
of Directors of the Company; provided however, that the Plan shall be subject to
the approval of the Company's stockholders in accordance with applicable laws
and regulations at an annual or special meeting held within TWELVE (12) months
of such effective date. No options granted under the Plan prior to such
stockholder approval may be exercised until such approval has been obtained. No
options may be granted under the Plan after the TENTH (10th) anniversary of the
effective date of the Plan.
Approved and adopted by the Board of Directors on April 17, 1997.
