As filed with the Securities and Exchange Commission on September 29, 1998
Registration No. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LEVEL 8 SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
New York 11-2920559
(State or other jurisdiction of (I.R.S. Employer Identification
incorporation or organization) Number)
1250 Broadway, 35th Floor
New York, New York 10001
(212) 244-1234
(Address of principal executive offices) (Zip code)
Level 8 Systems, Inc. 1997 Stock Option Plan, as Amended and Restated
(Full title of the plan)
Arie Kilman
Level 8 Systems, Inc.
1250 Broadway, 35th Floor
New York, New York 10001
(212) 244-1234
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES OF ALL COMMUNICATIONS TO:
Edward W. Kerson, Esq.
Proskauer Rose LLP
1585 Broadway
New York, New York 10036-8299
(212) 969-3290
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered (1) offering price per share aggregate offering price Registration Fee
- ------------------------- --------------------- ------------------------ ------------------------ ---------------------
Common Stock, par 388,485 shares $7.875(2) $3,059,319.38 $902.50
value $.01 per share
Common Stock, par 29,000 shares $10.69 (3) $310,010.00 $91.45
value $.01 per share
Common Stock, par 22,000 shares $12.23 (4) $269,060.00 $79.37
value $.01 per share
Common Stock, par 20,000 shares $16.03 (5) $320,600.00 $94.58
value $.01 per share
Common Stock, par 57,000 shares $16.62 (6) $947,340.00 $279.47
value $.01 per share
Common Stock, par 58,100 shares $11.76 (7) $683,256.00 $201.56
value $.01 per share
Common Stock, par 100,000 shares $14.73 (8) $1,473,000.00 $434.54
value $.01 per share
Common Stock, par 68,500 shares $12.75 (9) $873,375.00 $257.65
value $.01 per share
Common Stock, par 615,000 shares $9.00 (10) $5,535,000.00 $1,632.83
value $.01 per share
Common Stock, par 23,500 shares $8.50 (11) $199,750.00 $58.93
value $.01 per share
$4,032.88
=========
TOTAL
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</TABLE>
(1) Represents the maximum number of shares of common stock, par value
$.01 per share ("Common Stock"), issuable upon exercise of options
which may be or have been granted under the Level 8 Systems, Inc. 1997
Stock Option Plan, as Amended and Restated (the "Plan").
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) as to 388,485 shares, calculated on the basis
of the high and low prices of the Common Stock as reported on the
NASDAQ National Market on September 23, 1998.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $10.69 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 29,000 shares of
Common Stock.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $12.23 per
share with respect to options granted to purchase 22,000 shares of
Common Stock.
(5) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $16.03 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 20,000 shares of
Common Stock.
(6) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $16.62 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 57,000 shares of
Common Stock.
(7) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $11.76 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 58,100 shares of
Common Stock.
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(8) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $14.73 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 100,000 shares of
Common Stock.
(9) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $12.75 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 68,500 shares of
Common Stock.
(10) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $9.00 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 615,000 shares of
Common Stock.
(11) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $8.50 per
share with respect to options granted to employees, consultants or
non-employee directors of the Company to purchase 23,500 shares of
Common Stock.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents filed with the Securities and Exchange
Commission by Level 8 Systems, Inc., a New York corporation (the "Corporation"
or the "Registrant"), are incorporated herein by reference:
(1) The Corporation's Annual Report filed on Form 10-K and
Form 10-K/A for the fiscal year ended December 31, 1997;
(2) The Corporation's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 1998 and June 30, 1998;
(3) The Corporation's Current Reports on Form 8-K filed on
April 10, 1998 and April 21, 1998 and on Form 8-K/A filed on June 8,
1998 and June 19, 1998;
(4) All documents subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicated that all remaining securities
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in
the registration statement and to be part thereof from the date of
filing such documents. Any statement in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for the purposes of this Registration Statement
to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
(5) The description of the Corporation's Common Stock, par
value $.01 per share, contained in the Company's Registration
Statement filed on Form 8-A pursuant to Section 12 of the Securities
Exchange Act of 1934.
ITEM 4. DESCRIPTION OF SECURITIES.
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Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Article SIXTH of the Corporation's Certificate of Incorporation
provides that a director of the Corporation shall not be liable to the
Corporation for breach of fiduciary duty as a director except for (i) liability
if a judgment or other final adjudication adverse to a director establishes that
his or her acts or omissions were in bad faith or involved intentional
misconduct or knowing violation of law, that the director personally gained in
fact a financial profit or other advantage to which he or she was not or that
the director's acts violated Section 719 of the New York Business Corporation
Law or (ii) liability for any act or omission prior to the adoption of Article
SIXTH of the Corporation's Certificate of Incorporation. Article SIXTH further
provides that any repeal or modification of Article SIXTH by the Corporation's
shareholders will not adversely affect any right or protection of a director of
the
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Corporation existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to the repeal or modification.
Article IX of the Corporation's by-laws provides that, to the fullest
extent permitted by law, the Corporation will indemnify any person who was or is
a director or officer of the Corporation against all expenses incurred by such
person in connection with any claim, action, suit or proceeding that may be
asserted against him or her by reason of being or having been a director or
officer of the Corporation, provided that no indemnification may be made to or
on behalf of any director or officer if a judgment or other final adjudication
establishes that his or her acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the cause of action
adjudicated, or that he or she personally gained in fact a profit or other
advantage to which he or she was not legally entitled.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
ITEM 8. EXHIBITS.
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4.1 Restated Certificate of Incorporation of the Corporation, as
amended (incorporated by reference to Exhibit 3.1 to the
Corporation's Registration Statement on Form S-1 (Registration
No. 333-15455))
4.2 By-laws of the Corporation (incorporated by reference to Exhibit
3.2 to the Corporation's Registration Statement on Form S-1
(Registration No. 33-92230))
4.3 1997 Stock Option Plan of the Corporation, as Amended and
Restated (incorporated by reference to Exhibit 1 to the
Corporation's Definitive Proxy Statement for its Annual Meeting
of Shareholders held on May 11, 1998)
5 Opinion of Proskauer Rose LLP (1)
23.1 Consent of Grant Thornton LLP (1)
23.2 Consent of Lurie, Besikof, Lapidus & Co., LLP (1)
23.3 Consent of Proskauer Rose LLP (included in Exhibit 5)
24 Powers of Attorney (included on page II-4)
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(1) Filed herewith
ITEM 9. UNDERTAKINGS.
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(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 of 1933;
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(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;
(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) do not
apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in
a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 the 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 section 15(d)
of the Securities Exchange Act of 1934 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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in New York, New York, on September 29, 1998.
LEVEL 8 SYSTEMS, INC.
By: /S/ ARIE KILMAN
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Name: Arie Kilman
Title: Chairman of the Board and Chief
Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Arie Kilman, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, to act, without
the other, for him and in his name, place, and stead, in any and all capacities,
to sign a Registration Statement on Form S-8 of Level 8 Systems, Inc., and any
or all amendments (including post-effective amendments) thereto, relating to the
registration, under the Securities Act of 1933, as amended, of shares of Common
Stock of the Corporation to be issued pursuant to the Corporation's 1997 Stock
Option Plan, as Amended and Restated, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as full to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
/S/ ARIE KILMAN Chairman of the Board, September 29, 1998
- ---------------------- Chief Executive Officer,
Arie Kilman Director and Acting Chief
Accounting Officer
(Principal Executive Officer,
Principal Financial Officer
and Principal Accounting
Officer)
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/S/ SAMUEL SOMECH President and Director September 29, 1998
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Samuel Somech
/S/ THEODORE FINE Director September 29, 1998
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Theodore Fine
/S/ LENNY RECANATI Director September 29, 1998
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Lenny Recanati
/S/ FRANK J. KLEIN Director September 29, 1998
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Frank J. Klein
/S/ MICHEL BERTY Director September 29, 1998
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Michel Berty
/S/ ROBERT M. BRILL Director September 29, 1998
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Robert M. Brill
Exhibit 5
September 29, 1998
Level 8 Systems, Inc.
1250 Broadway, Suite 35th Floor
New York, New York 10001
Dear Sirs:
We are acting as counsel to Level 8 Systems, Inc., a New York
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company under the
Securities Act of 1933 relating to 1,381,585 shares (the "Shares") of common
stock, par value $.01 per share, of the Company. The Shares are to be issued by
the Company upon the exercise of certain stock options (the "Options") granted
and to be granted to certain employees, consultants and non-employee directors
of the Company pursuant to the Company's 1997 Stock Option Plan, as Amended and
Restated (the "Plan").
We have examined such agreements and other documents, certificates of
public officials and representatives of the Company, and have made such
investigation of law as we consider appropriate in order to give this opinion.
On that basis, we are of the opinion that the Shares, to the extent
they are newly issued, are duly authorized and, upon exercise of the Options in
accordance with the Plan against payment of the exercise price therefor (as
applicable), will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ PROSKAUER ROSE LLP
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 23, 1998 (except for Note N, as to
which the date is February 27, 1998, and Note H, as to which the date is April
6, 1998), accompanying the consolidated financial statements and schedule
included in the Annual Report of Level 8 Systems, Inc. on Form 10-K/A (File No.:
0-26392, filed September 11, 1998) for the year ended December 31, 1997, which
is incorporated by reference in this Registration Statement. We consent to the
incorporation by reference in the Registration Statement of the aforementioned
report.
/s/ GRANT THORNTON LLP
New York, New York
September 29, 1998
Exhibit 23.2
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in the Registration Statement
of Level 8 Systems, Inc. on Form S-8 of our report dated January 31, 1997,
except for Note H, as to which the date is April 6, 1998, relating to the
consolidated financial statements of Level 8 Systems, Inc. and subsidiaries as
of December 31, 1996 and for each of the two years in the period ended December
31, 1996, which report appears in this December 31, 1997, annual report on Form
10-K and Form 10-K/A of Level 8 Systems, Inc.
/s/ LURIE, BESIKOF, LAPIDUS & CO., LLP
Minneapolis, Minnesota
September 29, 1998
