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As filed with the Securities and Exchange Commission
on May 23, 1996
Registration No. 33-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
SPYGLASS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 37-1258139
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
NAPERVILLE CORPORATE CENTER,
1240 EAST DIEHL ROAD, NAPERVILLE, ILLINOIS 60563
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (Zip Code)
1996 STOCK OPTION PLAN FOR FORMER SURFWATCH
SOFTWARE, INC. STOCK OPTION HOLDERS
(Full title of the Plan)
DOUGLAS P. COLBETH
PRESIDENT AND CHIEF EXECUTIVE OFFICER
C/O SPYGLASS, INC.
NAPERVILLE CORPORATE CENTER
1240 EAST DIEHL ROAD
NAPERVILLE, ILLINOIS 60563
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(708) 505-1010
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
------------ ----------- ---------- -------------- -------------
Common Stock, 29,551 $26.875(1) $794,183.13(1) $274.00
$.01 par shares
value
___________________________________________________________________
(1) Estimated solely for the purpose of calculating the
registration fee, and based upon the average of the
high and low prices of the Common Stock on the Nasdaq
National Market on May 21, 1996 in accordance with
Rules 457(c) and 457(h) of the Securities Act of 1933.
===================================================================
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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 Registrant's 1996 Stock Option
Plan for Former Surfwatch Software, Inc. Stock Option Holders 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 Certain Documents by Reference
The following documents, which are filed with the Securities
and Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the registrant's latest fiscal
year for which such statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report or the prospectus referred to in (1)
above.
(3) The description of the common stock of the Registrant,
$.01 par value per share (the "Common Stock"), contained in the
Registrant'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 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.
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Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware
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 amounts paid and expenses 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, if such person shall have
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to believe
his conduct was unlawful; provided that, in the case of actions
brought by or in the right of the corporation, no indemnification
shall be made with respect to any matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to
the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Article NINTH of the Registrant's Amended and Restated
Certificate of Incorporation provides that a director or officer of
the Registrant (a) 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 (other than an action by or in
the right of the Registrant) brought against him by virtue of his
position as a director or officer of the Registrant if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Registrant, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful and (b) shall be indemnified by the
Registrant against expenses (including attorneys' fees) and amounts
paid in settlement reasonably incurred in connection with any action
by or in the right of the Registrant by virtue of his position as a
director or officer of the Registrant if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant, except that no indemnification shall be
made with respect to any such matter as to which such director or
officer shall have been adjudged to be liable to the Registrant,
unless and only to the extent that a court determines that, despite
the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity
for such expenses as the court deems proper. Notwithstanding the
foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, he shall be indemnified
against all expenses (including attorneys' fees) reasonably incurred
by him in connection therewith. Expenses incurred in defending a
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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.
Indemnification is required to be made unless the Registrant
determines (in the manner provided in the Amended and Restated
Certificate of Incorporation) that the applicable standard of conduct
required for indemnification has not been met. 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.
Article NINTH of the Registrant's Amended and Restated
Certificate of Incorporation further provides that the indemnification
provided therein is not exclusive, and provides that in the event that
the Delaware General 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 Company has purchased a general liability insurance policy
which covers certain liabilities of directors and officers of the
Company arising out of claims based on acts or omissions in their
capacity as directors or officers.
Article EIGHTH of the Registrant's Amended and Restated
Certificate of Incorporation provides that, except to the extent that
the General Corporation Law of Delaware prohibits the elimination or
limitation of liability of directors for breaches of fiduciary duty,
no director of the Registrant shall be personally liable to the
Registrant or its stockholders for monetary damages for any breach of
fiduciary duty as a director.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
Exhibit
Number Description
4.1 Amended and Restated Certificate of
Incorporation of the Registrant, as amended
4.2 (1) By-Laws of the Registrant
4.3 (1) Specimen certificate for shares of common stock.
5.1 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in
Exhibit 5.1)
23.2 Consent of Price Waterhouse L.L.P.
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
Item 9. Undertakings
1. The 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; and
(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;
______________________
(1) Incorporated herein by reference from the Registrant's
Registration Statement on Form S-1 (File No. 33-92174).
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provided, however, that paragraphs (i) and (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, 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.
2. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Naperville,
State of Illinois, on May 23, 1996.
SPYGLASS, INC.
By:/s/ Douglas P. Colbeth
----------------------
Douglas P. Colbeth
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Spyglass, Inc.
hereby severally constitute Douglas P. Colbeth, Gary Vilchick,
Thomas S. Lewicki and Patrick J. Rondeau, Esq., 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 subsequent amendments to said
Registration Statement, and generally to do all such things in our
names and behalf in our capacities as officers and directors to
enable Spyglass, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming
our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments
thereto.
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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/Douglas P. Colbeth President, Chief ) May 23,1996
--------------------- Executive Officer and )
Douglas P. Colbeth Director (principal )
executive officer) )
)
)
)
/s/ Gary Vilchick Chief Financial Officer ) May 23,1996
----------------- (principal financial )
Gary Vilchick officer) )
)
)
/s/ Thomas S. Lewicki Treasurer and Controller ) May 23,1996
--------------------- (principal accounting )
Thomas S. Lewicki officer) )
)
)
/s/ Tim Krauskopf Director ) May 23,1996
----------------- )
Tim Krauskopf )
)
/s/ William S. Kaiser Director ) May 23,1996
--------------------- )
William S. Kaiser )
)
/s/ Ray Rothrock Director ) May 23,1996
---------------- )
Ray Rothrock )
)
/s/ Steven R. Vana-Paxhia Director ) May 23,1996
-------------------------- )
Steven R. Vana-Paxhia
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Exhibit Index
Exhibit
Number Description
4.1 Amended and Restated Certificate of
Incorporation of the Registrant, as amended
4.2 (1) By-Laws of the Registrant
4.3 (1) Specimen certificate for shares of common stock.
5.1 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in
Exhibit 5.1)
23.2 Consent of Price Waterhouse L.L.P.
24.1 Power of Attorney (included on the signature
page of this Registration Statement)
______________________
(1) Incorporated herein by reference from the Registrant's
Registration Statement on Form S-1 (File No. 33-92174).
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Exhibit 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
SPYGLASS, INC., AS AMENDED ON JANUARY 25, 1996
Incorporated pursuant to an original Certificate of
Incorporation under the name "Spyglass, Inc." filed with the
Secretary of State of the State of Delaware on May 8, 1995. This
Amended and Restated Certificate of Incorporation (i) amends
ARTICLE FOURTH by deleting Section II.3 thereof in order to
eliminate the Series A Preferred Stock, $.01 par value per share
("Series A Preferred Stock"), and the Series B Preferred Stock,
$.01 par value per share ("Series B Preferred Stock"), none of
which is issued or outstanding on the date hereof, by changing
Section I of ARTICLE FOURTH in order to reduce the total number of
shares of capital stock which the Corporation is authorized to
issue to 17,000,000, and by deleting all references to the Series
A Preferred Stock and the Series B Preferred Stock, (ii) amends
ARTICLE ELEVENTH by deleting the first two sentences and by
deleting the first clause of the third sentence thereof, (iii)
deletes ARTICLE FIFTH, and (iv) restates and integrates the
Certificate of Incorporation of the Corporation and, as such, was
duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
(On January 25, 1996 this Amended and Restated Certificate of
Incorporation was amended to increase from 15,000,000 to 50,000,000
the number of authorized shares of Common Stock.)
We, the undersigned, for purposes of amending and restating the
Certificate of Incorporation of the Corporation pursuant to Sections
242 and 245 of the General Corporation Law of the State of Delaware,
do hereby certify as follows:
FIRST. The name of the Corporation is: Spyglass, Inc.
SECOND. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD. The nature of the business or purposes to be
conducted or promoted by the Corporation is as follows:
To engage in any lawful act or activity for which
Corporations may be organized under the General Corporation Law of
Delaware.
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FOURTH: I. The total number of shares of all classes of
stock which the Corporation shall have authority to issue is
52,000,000 shares, consisting of (i) 50,000,000 shares of Common
Stock, $.01 par value per share ("Common Stock"), and 2,000,000
shares of Preferred Stock, $.01 par value per share ("Preferred
Stock"), consisting of 2,000,000 shares that are initially
undesignated.
II. The following is a statement of the designations and the
powers, privileges and rights, and the qualifications, limitations
or restrictions thereof in respect of each class of capital stock
of the Corporation.
1. COMMON STOCK.
A. General. The voting, dividend and liquidation rights of
the holders of the Common Stock are subject to and qualified by
the rights of the holders of the Preferred Stock of any series as
may be designated by the Board of Directors upon any issuance of
the Preferred Stock of any series.
B. Voting. The holders of the Common Stock are entitled to
one vote for each share held at all meetings of stockholders (and
written actions in lieu of meetings). There shall be no
cumulative voting.
The number of authorized shares of Common Stock may be
increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the General
Corporation Law of Delaware.
C. Dividends. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as and when
determined by the Board of Directors and subject to any
preferential dividend rights of any then outstanding Preferred
Stock.
D. Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common
Stock will be entitled to receive all assets of the Corporation
available for distribution to its stockholders, subject to any
preferential rights of any then outstanding Preferred Stock.
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2. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or
more series, each of such series to have such terms as stated or
expressed herein and in the resolution or resolutions providing
for the issue of such series adopted by the Board of Directors of
the Corporation as hereinafter provided. Any shares of Preferred
Stock which may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise provided by law.
Different series of Preferred Stock shall not be construed to
constitute different classes of shares for the purposes of voting
by classes unless expressly provided.
Authority is hereby expressly granted to the Board of
Directors from time to time to issue the Preferred Stock in one or
more series, and in connection with the creation of any such
series, by resolution or resolutions providing for the issue of
the shares thereof, to determine and fix such voting powers, full
or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special
rights, and qualifications, limitations or restrictions thereof,
including without limitation thereof, dividend rights, conversion
rights, redemption privileges and liquidation preferences, as
shall be stated and expressed in such resolutions, all to the full
extent now or hereafter permitted by the General Corporation Law
of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred
Stock may provide that such series shall be superior or rank
equally or be junior to the Preferred Stock of any other series to
the extent permitted by law. Except as otherwise provided in this
Certificate of Incorporation, no vote of the holders of the
Preferred Stock or Common Stock shall be a prerequisite to the
designation or issuance of any shares of any series of the
Preferred Stock authorized by and complying with the conditions of
this Certificate of Incorporation, the right to have such vote
being expressly waived by all present and future holders of the
capital stock of the Corporation.
FIFTH. Intentionally omitted.
SIXTH. In furtherance of and not in limitation of powers
conferred by statute, it is further provided:
1. Election of directors need not be by written
ballot, except as and to the extent provided in the By-laws of the
Corporation.
2. The Board of Directors is expressly authorized to
adopt, amend or repeal the By-laws of the Corporation, except as
and to the extent provided in the By-laws of the Corporation.
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SEVENTH. Whenever a compromise or arrangement is proposed
between this Corporation and its creditors or any class of them
and/or between this Corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this
Corporation under the provisions of section 291 of Title 8 of the
General Corporation Law of Delaware or on the application of
trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of
Title 8 of the General Corporation Law of Delaware order a meeting
of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as
the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or
class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
EIGHTH. Except to the extent that the General Corporation
Law of Delaware prohibits the elimination or limitation of
liability of directors for breaches of fiduciary duty, no director
of the Corporation shall be personally liable to the Corporation
or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this
provision shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with
respect to any acts or omissions of such director occurring prior
to such amendment.
NINTH. 1. Actions, Suits and Proceedings Other than by or
in the Right of the Corporation. The Corporation shall indemnify
each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he is or was, or has
agreed to become, a director or officer of the Corporation, or is
or was serving, or has agreed to serve, at the request of the
Corporation, as a director, officer or trustee of, or in a similar
capacity with, another corporation, partnership, joint venture,
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trust or other enterprise (including any employee benefit plan)
(all such persons being referred to hereafter as an "Indemnitee"),
or by reason of any action alleged to have been taken or omitted
in such capacity, against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with
such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful. Notwithstanding anything to the contrary in
this Article, except as set forth in Section 7 below, the
Corporation shall not indemnify an Indemnitee seeking
indemnification in connection with a proceeding (or part thereof)
initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation.
2. Actions or Suits by or in the Right of the Corporation.
The Corporation shall indemnify any Indemnitee who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the
fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer
or trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise (including
any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses
(including attorneys' fees) and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal
therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery of Delaware or
the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of such liability
but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses
(including attorneys' fees) which the Court of Chancery of
Delaware or such other court shall deem proper.
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3. Indemnification for Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the
extent that an Indemnitee has been successful, on the merits or
otherwise, in defense of any action, suit or proceeding referred
to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action,
suit or proceeding, he shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by
him or on his behalf in connection therewith. Without limiting
the foregoing, if any action, suit or proceeding is disposed of,
on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the
Indemnitee, (ii) an adjudication that the Indemnitee was liable to
the Corporation, (iii) a plea of guilty or nolo contendere by the
Indemnitee, (iv) an adjudication that the Indemnitee did not act
in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the
Indemnitee had reasonable cause to believe his conduct was
unlawful, the Indemnitee shall be considered for the purposes
hereof to have been wholly successful with respect thereto.
4. Notification and Defense of Claim. As a condition
precedent to his right to be indemnified, the Indemnitee must
notify the Corporation in writing as soon as practicable of any
action, suit, proceeding or investigation involving him for which
indemnity will or could be sought. With respect to any action,
suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein
at its own expense and/or to assume the defense thereof at its own
expense, with legal counsel reasonably acceptable to the
Indemnitee. After notice from the Corporation to the Indemnitee
of its election so to assume such defense, the Corporation shall
not be liable to the Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such
claim, other than as provided below in this Section 4. The
Indemnitee shall have the right to employ his own counsel in
connection with such claim, but the fees and expenses of such
counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the
Indemnitee unless (i) the employment of counsel by the Indemnitee
has been authorized by the Corporation, (ii) counsel to the
Indemnitee shall have reasonably concluded that there may be a
conflict of interest or position on any significant issue between
the Corporation and the Indemnitee in the conduct of the defense
of such action or (iii) the Corporation shall not in fact have
employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel for the Indemnitee
shall be at the expense of the Corporation, except as otherwise
expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the
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defense of any claim brought by or in the right of the Corporation
or as to which counsel for the Indemnitee shall have reasonably
made the conclusion provided for in clause (ii) above.
5. Advance of Expenses. Subject to the provisions of
Section 6 below, in the event that the Corporation does not assume
the defense pursuant to Section 4 of this Article of any action,
suit, proceeding or investigation of which the Corporation
receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal
therefrom shall be paid by the Corporation in advance of the final
disposition of such matter; provided, however, that the payment of
such expenses incurred by an Indemnitee in advance of the final
disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts
so advanced in the event that it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified by the
Corporation as authorized in this Article. Such undertaking shall
be accepted without reference to the financial ability of the
Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Section 1,
2, 3 or 5 of this Article, the Indemnitee shall submit to the
Corporation a written request, including in such request such
documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to indemnification or
advancement of expenses. Any such indemnification or advancement
of expenses shall be made promptly, and in any event within 60
days after receipt by the Corporation of the written request of
the Indemnitee, unless with respect to requests under Section 1, 2
or 5 the Corporation determines within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set
forth in Section 1 or 2, as the case may be. Such determination
shall be made in each instance by (a) a majority vote of a quorum
of the directors of the Corporation consisting of persons who are
not at that time parties to the action, suit or proceeding in
question ("disinterested directors"), (b) if no such quorum is
obtainable, a majority vote of a committee of two or more
disinterested directors, (c) a majority vote of a quorum of the
outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit
or proceeding in question, (d) independent legal counsel (who may
be regular legal counsel to the Corporation), or (e) a court of
competent jurisdiction.
7. Remedies. The right to indemnification or advances as
granted by this Article shall be enforceable by the Indemnitee in
any court of competent jurisdiction if the Corporation denies such
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<PAGE> 8
request, in whole or in part, or if no disposition thereof is made
within the 60-day period referred to above in Section 6. Unless
otherwise required by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of
expenses under this Article shall be on the Corporation. Neither
the failure of the Corporation to have made a determination prior
to the commencement of such action that indemnification is proper
in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the
Corporation pursuant to Section 6 that the Indemnitee has not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that the Indemnitee has not met the
applicable standard of conduct. The Indemnitee's expenses
(including attorneys' fees) incurred in connection with
successfully establishing his right to indemnification, in whole
or in part, in any such proceeding shall also be indemnified by
the Corporation.
8. Subsequent Amendment. No amendment, termination or
repeal of this Article or of the relevant provisions of the
General Corporation Law of Delaware or any other applicable laws
shall affect or diminish in any way the rights of any Indemnitee
to indemnification under the provisions hereof with respect to any
action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to
the final adoption of such amendment, termination or repeal.
9. Other Rights. The indemnification and advancement of
expenses provided by this Article shall not be deemed exclusive of
any other rights to which an Indemnitee seeking indemnification or
advancement of expenses may be entitled under any law (common or
statutory), agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity
and as to action in any other capacity while holding office for
the Corporation, and shall continue as to an Indemnitee who has
ceased to be a director or officer, and shall inure to the benefit
of the estate, heirs, executors and administrators of the
Indemnitee. Nothing contained in this Article shall be deemed to
prohibit, and the Corporation is specifically authorized to enter
into, agreements with officers and directors providing
indemnification rights and procedures different from those set
forth in this Article. In addition, the Corporation may, to the
extent authorized from time to time by its Board of Directors,
grant indemnification rights to other employees or agents of the
Corporation or other persons serving the Corporation and such
rights may be equivalent to, or greater or less than, those set
forth in this Article.
10. Partial Indemnification. If an Indemnitee is entitled
under any provision of this Article to indemnification by the
Corporation for some or a portion of the expenses (including
attorneys' fees), judgments, fines or amounts paid in settlement
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<PAGE> 9
actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and
any appeal therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the
Indemnitee for the portion of such expenses (including attorneys'
fees), judgments, fines or amounts paid in settlement to which the
Indemnitee is entitled.
11. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation would
have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of Delaware.
12. Merger or Consolidation. If the Corporation is merged
into or consolidated with another corporation and the Corporation
is not the surviving corporation, the surviving corporation shall
assume the obligations of the Corporation under this Article with
respect to any action, suit, proceeding or investigation arising
out of or relating to any actions, transactions or facts occurring
prior to the date of such merger or consolidation.
13. Savings Clause. If this Article or any portion hereof
shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify
each Indemnitee as to any expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with
any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right
of the Corporation, to the fullest extent permitted by any
applicable portion of this Article that shall not have been
invalidated and to the fullest extent permitted by applicable law.
14. Definitions. Terms used herein and defined in
Section 145(h) and Section 145(i) of the General Corporation Law
of Delaware shall have the respective meanings assigned to such
terms in such Section 145(h) and Section 145(i).
15. Subsequent Legislation. If the General Corporation Law
of Delaware is amended after adoption of this Article to expand
further the indemnification permitted to Indemnitees, then the
Corporation shall indemnify such persons to the fullest extent
permitted by the General Corporation Law of Delaware, as so
amended.
TENTH. Notwithstanding any other provision of law, this
Certificate of Incorporation or the By-laws of the Corporation,
and notwithstanding the fact that a lesser percentage may be
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<PAGE> 10
specified by law, the affirmative vote of the holders of at least
seventy-five percent (75%) of the votes which all the stockholders
would be entitled to cast in any annual election of directors or
class of directors shall be required to amend or repeal, or to
adopt any provision inconsistent with, Articles EIGHTH, NINTH and
TENTH. Except as otherwise provided herein, the Corporation
reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute and the Certificate of
Incorporation, and all rights conferred upon stockholders herein
are granted subject to this reservation.
ELEVENTH. Any action required or permitted to be taken at
any annual or special meeting of stockholders of the Corporation
may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken,
is signed by the holders of all of the outstanding shares of stock
that would be entitled to vote thereon at a meeting of
stockholders. Notwithstanding any other provision of law, this
Certificate of Incorporation, as amended, or the By-Laws, and
notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least seventy-
five percent (75%) of the votes which all the stockholders would
be entitled to cast at any annual election of directors or class
of directors shall be required to amend or repeal, or to adopt any
provision inconsistent with, this Article ELEVENTH.
TWELFTH. This Article is inserted for the management of the
business and for the conduct of the affairs of the Corporation.
1. Number of Directors. The number of directors of the
Corporation shall not be less than three. The exact number of
directors within the limitations specified in the preceding
sentence shall be fixed from time to time pursuant to a resolution
adopted by the Board of Directors.
2. Classes of Directors. The Board of Directors shall be
and is divided into three classes: Class I, Class II and Class
III. No one class shall have more than one director more than any
other class. If a fraction is contained in the quotient arrived
at by dividing the authorized number of directors by three, then,
if such fraction is one-third, the extra director shall be a
member of Class I, and if such fraction is two-thirds, one of the
extra directors shall be a member of Class I and one of the extra
directors shall be a member of Class II, unless otherwise provided
for from time to time by resolution adopted by a majority of the
Board of Directors.
3. Terms of Office. Each director shall serve for a term
ending on the date of the third annual meeting following the
annual meeting at which such director was elected; provided, that
each initial director in Class I shall serve for a term ending on
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<PAGE> 11
the date of the annual meeting next following the end of the
Corporation's fiscal year ending September 30, 1995; each initial
director in Class II shall serve for a term ending on the date of
the annual meeting next following the end of the Corporation's
fiscal year ending September 30, 1996; and each initial director
in Class III shall serve for a term ending on the date of the
annual meeting next following the fiscal year ended September 30,
1997; and provided further, that the term of each director shall
continue until the election and qualification of his successor and
shall be subject to his earlier death, resignation or removal.
4. Allocation of Directors among Classes in the Event of
Increases or Decreases in the Number of Directors. In the event
of any increase or decrease in the authorized number of directors,
(i) each director then serving as such shall nevertheless continue
as a director of the class of which he is a member until the
expiration of his current term, subject to his earlier death,
resignation or removal, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three classes of
directors in accordance with the provisions of Section 2 above.
5. Quorum; Action at Meeting. A majority of the total
number of directors then in office shall constitute a quorum at
all meetings of the Board of Directors. In the event one or more
of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall
less than one-third of the number of directors fixed pursuant to
Section 1 above constitute a quorum. If at any meeting of the
Board of Directors there shall be less than such a quorum, a
majority of those present may adjourn the meeting from time to
time. Every act or decision done or made by a majority of the
directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors
unless a greater number is required by law, by the By-laws of the
Corporation or by this Certificate of Incorporation.
6. Removal. If and for so long as the Board of Directors
is classified pursuant to Section 141(d) of the General
Corporation Law of Delaware, stockholders may effect the removal
of a director or the entire Board of Directors only for cause,
unless this Certificate of Incorporation provides otherwise.
7. Vacancies. Unless and until filled by the stockholders,
any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board,
may be filled by a vote of a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected
to hold office until the next election of the class for which such
director shall have been chosen, subject to the election and
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<PAGE> 12
qualification of his successor and to his earlier death,
resignation or removal.
8. Amendments. Notwithstanding any other provisions of
law, this Certificate of Incorporation or the By-laws of the
Corporation, and notwithstanding the fact that a lesser percentage
may be specified by law, the affirmative vote of the holders of at
least seventy-five percent (75%) of the votes which all of the
stockholders would be entitled to cast at an annual election of
directors or class of directors shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article
TWELFTH.
IN WITNESS WHEREOF, the Corporation has caused its corporate
seal to be affixed hereto and this Amended and Restated
Certificate of Incorporation to be signed by its President and
attested by its Secretary this 29th day of June, 1995.
SPYGLASS, INC.
ATTEST: By:/s/ Douglas P. Colbeth
Douglas P. Colbeth,
President
/s/ Thomas S. Lewicki
Thomas S. Lewicki
Secretary
[seal]
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<PAGE> 1
EXHIBIT 5.1
May 23, 1996
Spyglass, Inc.
Naperville Corporate Center
1240 East Diehl Road
Naperville, Illinois 60563
Re: 1996 Stock Option Plan for Former Surfwatch Software,
Inc. Stock Option Holders
Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed
on May 23, 1996 with the Securities and Exchange Commission
relating to 29,551 shares of the Common Stock, $.01 par value per
share ("Shares"), of Spyglass, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1996 Stock Option Plan
for Former Surfwatch Software, Inc. Stock Option Holders (the
"Plan").
We have examined the Agreement and Plan of Merger among the
Company, Spyglass Acquisition Corp. and Surfwatch Software, Inc.,
dated April 23, 1996, the Amended and Restated Certificate of
Incorporation as amended and the By-laws of the Company 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 our 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 is a corporation duly organized and validly existing under
the laws of the State of Delaware and that the Company has duly
<PAGE> 2
Spyglass, Inc.
May 23, 1996
Page 2
authorized for issuance the Shares, and the Shares, when issued
and paid for in accordance with the terms of the Plan and at a price
per share in excess of the par value per share for such Shares, 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
HALE AND DORR
<PAGE> 1
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 October 25, 1995 except as to Note 1,
which is as of November 28, 1995, which appears on page 17 of the 1995 Annual
Report of Spyglass, Inc., which is incorporated by reference in Spyglass,
Inc.'s Annual Report on Form 10-K for the year ended September 30, 1995. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears in Spyglass, Inc.'s Annual Report on Form
10-K.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Chicago, Illinois
May 20, 1996
