As filed with the Securities and Exchange Commission on February 4, 1998.
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement Under
the Securities Act of 1933
SOFTNET SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
NEW YORK 11-1817252
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
520 LOGUE AVENUE
MOUNTAIN VIEW, CA 94043
(Address of Principal Executive Offices)
AMENDED 1995 LONG TERM INCENTIVE PLAN
and
EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plans)
A.J.R. OOSTHUIZEN Telephone number,
CHIEF EXECUTIVE OFFICER including area code,
AND PRESIDENT of agent for service:
520 LOGUE AVENUE (650) 965-3700
MOUNTAIN VIEW, CA 94043
(Name and Address 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(1) Per Share(2) Price(2) Fee
<S> <C> <C> <C> <C>
Common Stock,
par value $0.01
per share 1,525,952 Shares $6.625 $10,109,432 $2,982.29
(1) An undetermined number of additional shares may be issued if the anti-
dilution adjustment provisions of the plans become operative.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rules 457(c) and (h) under the Securities Act of
1933 on the basis of the average of the high and low prices of the
Common Stock as quoted on the American Stock Exchange on January 29,
1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated by reference into this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997.
2. The Company's Current Report on Form 8-K dated January 12,
1998.
3. The Company's amendment to its Form 10-Q for the quarter ended
December 31, 1996 filed with the Commission on January 29, 1998.
4. The Company's amendment to its Form 10-Q for the quarter ended
March 31, 1997 filed with the Commission on January 29, 1998.
5. The Company's amendment to its Form 10-Q for the quarter ended
June 30, 1997 filed with the Commission on January 29, 1998.
6. The Company's amendment to its Form 10-K for the year ended
September 30, 1997 filed with the Commission on January 28, 1998.
7. The Company's Schedule 14A filed with the Commission on January
28, 1998.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-
effective amendment that indicates that all securities offered have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents"); provided, however, that the documents enumerated above or
subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 and 15(d)
of the 1934 Act in each year during which the offering made by this Registration
Statement is in effect prior to the filing with the Commission of the Company's
Annual Report on Form 10-K covering such year shall not be Incorporated
Documents or be incorporated by reference in this Registration Statement or be a
part hereof from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document 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.
The securities to be offered are registered under Section 12(b) of the
1934 Act.
Item 5. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The New York Business Corporation Law and the By-laws of the Registrant
provide for indemnification of directors and officers for expenses (including
reasonable amounts paid in settlement) incurred in defending actions brought
against them.
The Company's Certificate of Incorporation provides that no contract or
other transaction between the corporation and any other corporation shall be
affected or invalidated by the fact that any one or more of the directors of the
Company is or are interested in or is a director or officer, or are directors or
officers, of such other corporation, and any director or directors, individually
or jointly, may be a party or parties to or may be interested in any contractor
transaction of the Company, or in which the Company is interested, and no
contract, act or transaction of the Company with any person or persons, firms or
corporations shall be affected or invalidated by the fact that any director or
directors of the Company is a party or are parties to, or interested in, such
contract, act or transaction, or in any way connected with such person or
persons, firms or corporations, and each and every person who may become a
director of the Company is hereby relieved from any liability that might
otherwise exist from contracting with the Company for the benefit of himself or
any firm or corporation in which he may be in anyway interested.
The Company's Bylaws provide that the Company may indemnify any person
made, or threatened to be made, a party to a civil or criminal action or
proceeding (other than one by or in the right of the Company to procure a
judgment in its favor), by reason of the fact that he was a director or officer
of the Company, or serves another entity in any capacity at the request of the
Company, against judgments, fines, settlement amounts and reasonable expenses,
including actual and necessary attorneys' fees, if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or,
in the case of service for any other entity, not opposed to, the best interest
of the Company, and, in criminal actions or proceedings, had no reasonable cause
to believe that his conduct was unlawful ("Good Faith"). The termination of any
such action or proceeding by judgment, settlement, conviction or upon a plea of
nolo contendere, or its equivalent, shall not in itself create a presumption
that any such director or officer did not act in Good Faith.
Under the Company's Bylaws, a person who has been successful, on the merits
or otherwise, in the defense of an action or proceeding described above shall be
entitled to indemnification. Except as provided in immediately preceding
sentence, any indemnification under the above paragraph or otherwise permitted
by Section 721 of the New York Business Corporation Law, unless ordered by a
court of competent jurisdiction, shall be made by the Company, only if
authorized in the specific case: (i) by the Board of Directors acting by a
quorum consisting of disinterested directors, or (ii) if a quorum is not
obtainable or a quorum of disinterested directors so directs, by the Board, upon
the opinion of independent legal counsel that indemnification is proper in the
circumstances, or by the shareholders.
Under the Company's Bylaws, the Company may indemnify any person made,
threatened or threatened to be made, a party to an action by or in the right of
the Company to procure a judgment in its favor by reason of this fact that he is
or was a director or officer of the Company, or is or was serving at the request
of the Company as a director or officer of any other entity against amounts paid
in settlement and reasonable expenses, including actual and necessary attorneys'
fees, if such director or officer acted, in good faith, for a purpose which he
reasonably believed to be in, or, in the case of service for any other entity,
not opposed to, the best interest of the Company, except, that no
indemnification under this paragraph shall be made in respect of (i) a
threatened action, or a pending action if settled or otherwise disposed of, or
(ii) any claim, issue or matter as to which such person shall have been adjudged
to be liable to the Company, unless the court in which the action was brought,
or, if no action was brought, any court of competent jurisdiction, determines
that the person is fairly and reasonably entitled to indemnity for such portion
of the settlement amount and expenses as the court deems proper.
Under the Company's Bylaws, the Company shall have the power to purchase
and maintain insurance to satisfy its indemnification obligations hereunder, or
to indemnify directors and officers in instances in which they may not otherwise
be indemnified by the Company under certain circumstances. No insurance may
provide for any payment, other than the cost of defense, to or on behalf of any
director or officer: (i) if it is established that his acts were committed in
bad faith or with deliberate dishonesty, were material to the cause of the
adjudicated action, or that he personally and illegally gained a financial
profit or other advantage, or (ii) in relation to any risk, the insurance of
which is prohibited under New York state insurance law.
Under the Company's Bylaws, the indemnification and advancement of expenses
shall not be deemed the exclusive right of any other rights to which a director
or officer may be entitled, provided that no indemnification may be made to or
on behalf of any director or officer if a judgment or other final adjudication
adverse to the director or officer establishes that his acts were committed in
bad faith or were the result of deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally and illegally gained a
financial profit or other advantage. No indemnification, advancement or
allowance shall be made in any circumstances if (i) the indemnification would be
inconsistent with a provision of the Company's Certificate of Incorporation, By-
laws, Board or shareholders resolutions, an agreement or other proper corporate
action, that is in effect at the time of the accrual of the alleged cause of
action, which prohibits or limits indemnification, or (ii) the court states that
indemnification would be inconsistent with any condition with respect to
indemnification expressly imposed by the court in a court-approved settlement.
If any amounts are paid by indemnification, otherwise than by court order or
action by the shareholders, the Company shall mail to its voting shareholders, a
statement describing the terms of the indemnification and any corporate action
taken with respect to the indemnification.
The Registrant maintains directors and officers liability insurance
covering all directors and officers of the Registrant against claims arising out
of the performance of their duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Reference is made to the Exhibit Index.
Item 9. Undertakings.
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "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) That, for the purposes of determining any liability under the
Act, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the 1934 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.
(4) 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.
(5) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 6 or otherwise, the
registrant has been advised that in the opinion of the 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned 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 Mountain View, California, on the
30th day of January, 1998.
SOFTNET SYSTEMS, INC.
By:/s/ A.J.R. Oosthuizen
_________________________________________
A.J.R. Oosthuizen
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Softnet Systems, Inc.,
hereby severally constitute A.J.R. Oosthuizen and Ian B. Aaron, and each of them
singly, our true and lawful attorneys with full power in them, and each of them
singly, to sign for us and in our names in the capacities indicated below, the
Registration Statement on Form S-8 filed herewith and any and all amendments
(including post-effective amendments) to said Registration Statement, and
generally to do all such things in our name and on our behalf in the capacities
indicated below to enable Softnet Systems, Inc. to comply with the provisions of
the Securities Act of 1933, as amended, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
Pursuant to the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 30th day of January, 1998.
Signature Title
\s\A.J.R. Oosthuizen President, Chief Executive
A.J.R. Oosthuizen Officer and Director
(Principal Executive Officer)
\s\Mark A. Phillips Treasurer
Mark A. Phillips (Principal Financial and Accounting Officer)
\s\Ronald I. Simon Director
Ronald I. Simon
\s\Ian B. Aaron Director
Ian B. Aaron
\s\John G. Hamm Director
John G. Hamm
EXHIBIT INDEX
Exhibit Number Description
4.1 The Softnet Systems, Inc. Amended 1995 Long term Incentive Plan
(incorporated herein by reference to Exhibit A to Registrant's
Proxy Statement dated February 26, 1997).
4.2* The Softnet Systems, Inc. Employee Stock Option Plan (incorporated
herein by reference to Exhibit B to Registrant's Proxy Statement
dated January 31, 1996).
4.3 The Softnet Systems, Inc. Certificate of Incorporation, as amended
(incorporated herein by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 (Reg. No. 333-45335) filed
January 30, 1998).
4.4 By-Laws of the Registrant as currently in effect (incorporated
herein by reference to Exhibit 3.2 to Registrant's Annual Report
on Form 10-K for the year ended September 30, 1993).
5* Opinion (including consent) of McDermott, Will & Emery.
23.1* Consent of Coopers & Lybrand L.L.P.
23.2* Consent of McDermott, Will & Emery (included in Exhibit 5).
24* Powers of Attorney (included on signature page).
*Filed herewith.
McDermott, Will & Emery
227 West Monroe Street
Chicago, Illinois 60606
February 4, 1998
SoftNet Systems, Inc.
520 Logue Avenue
Mountain View, CA 94043
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for SoftNet Systems, Inc. (the "Company") in
connection with the preparation and filing of a Registration Statement on
Form S-8 (the "Registration Statement") for the registration under the
Securities Act of 1933, as amended, of 1,525,952 shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock"), which may be issued
pursuant to the Company's stock options plans (the "Plans").
We have examined or considered:
1. A copy of the Company's Certificate of Incorporation, as amended.
2. The By-Laws of the Company.
3. Telephonic confirmation of the Secretary of State of Delaware, as of a
recent date, as to the good standing of the Company in that state.
4. A copy of resolutions duly adopted by the Board of Directors of the
Company relating to the Plans.
5. A copy of the Plans.
In addition to the examination outlined above, we have conferred with
various officers of the Company and have ascertained or verified, to our
satisfaction, such additional facts as we deemed necessary or appropriate for
the purposes of this opinion.
Based on the foregoing, we are of the opinion that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
(b) All legal and corporate proceedings necessary for the
authorization, issuance and delivery of the shares of Common Stock under
the Plans have been duly taken, and the Common Stock, upon issuance
pursuant to the terms of the Plans, will be duly authorized, legally and
validly issued, fully paid and nonassessable.
We hereby consent to all references to our Firm in the Registration
Statement and to the filing of this opinion by the company as an Exhibit to the
Registration Statement.
Very truly yours,
/s/McDermott, Will & Emery
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
SoftNet Systems, Inc.
We consent to the inclusion by reference in this registration statement on
Form S-8 of our report dated December 24, 1997, on our audits of the financial
statements and financial statement schedules of SoftNet Systems, Inc. and
subsidiaries. We also consent to the reference to our firm under the caption
"Experts."
Chicago, Illinois
February 2, 1998
Coopers & Lybrand L.L.P.
