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As filed with the Securities and Exchange Commission on November 21, 1997
Registration No. 333-
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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)
1997 STOCK OPTION PLAN FOR FORMER
ALLPEN SOFTWARE 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)
(630) 505-1010
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price per aggregate offering registration
to be registered registered share price fee
- -------------------- -------------- -------------------- -------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 360,759 shares $ 8.25(1) $2,976,261.75(1) $902.00
</TABLE>
____________
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Registrant's
Common Stock as reported by the Nasdaq National Market on November 17,
1997 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 1997 Stock Option Plan for Former
AllPen Software 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.
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
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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 suchindemnification is proper under the circumstances.
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation, as amended, 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 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, as amended) 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, as amended, 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.
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Article EIGHTH of the Registrant's Amended and Restated Certificate of
Incorporation, as amended, 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.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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;
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
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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 November 21, 1997.
SPYGLASS, INC.
By: /s/ Douglas P. Colbeth
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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 L. Vilchick 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Douglas P. Colbeth President, Chief November 21, 1997
- ------------------------- Executive Officer
Douglas P. Colbeth and Director
(principal
executive officer)
/s/ Gary L. Vilchick Executive Vice November 21, 1997
- ------------------------- President, Finance,
Gary L. Vilchick Administration and
Operations and
Chief Financial
Officer (principal
financial and
accounting officer)
/s/ Brian J. Jackman Director November 21, 1997
- -------------------------
Brian J. Jackman
/s/ Tim Krauskopf Director November 21, 1997
- -------------------------
Tim Krauskopf
/s/ Ray Rothrock Director November 21, 1997
- -------------------------
Ray Rothrock
/s/ Steven R. Vana-Paxhia Director November 21, 1997
- -------------------------
Steven R. Vana-Paxhia
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 (1) Amended and Restated Certificate of Incorporation of the
Registrant, as amended
4.2 (2) By-Laws of the Registrant
4.3 (2) Specimen certificate for shares of common stock.
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
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(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-8 (File No. 333-04357) filed May 23, 1996.
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-92174).
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EXHIBIT 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 FAX 617-526-5000
November 21, 1997
Spyglass, Inc.
Naperville Corporate Center
1240 East Diehl Road
Naperville, Illinois 60563
Re: 1997 Stock Option Plan for Former
AllPen Software 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 November 21, 1997 with the
Securities and Exchange Commission relating to 360,759 shares of the Common
Stock, $.01 par value per share ("Shares"), of Spyglass, Inc., a Delaware
corporation (the "Company"), issuable under the Company's 1997 Stock Option
Plan for Former AllPen Software Stock Option Holders (the "Plan").
We have examined the Agreement and Plan of Merger among the Company,
Spyglass Acquisition Corp. and AllPen Software, dated as of November 14, 1997,
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 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 LLP
HALE AND DORR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 25, 1996, which appears on
page 31 of the 1996 Annual Report Spyglass, Inc., which is incorporated by
reference in Spyglass, Inc.'s Annual Report on Form 10-K for the year ended
September 30, 1996. 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
November 20, 1997
