-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TXd6gxKDoi88zrMsD+Cox439Jde/gPgblpARavpugNlaJhFlHKxdbCG33YqQWRs2 PMBVnmHZOMRrhOyyst4Cdw== 0001095811-01-000060.txt : 20010122 0001095811-01-000060.hdr.sgml : 20010122 ACCESSION NUMBER: 0001095811-01-000060 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010104 EFFECTIVENESS DATE: 20010104 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PERSISTENCE SOFTWARE INC CENTRAL INDEX KEY: 0001084400 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943138935 STATE OF INCORPORATION: CA FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-53176 FILM NUMBER: 1501768 BUSINESS ADDRESS: STREET 1: 1720 SOUTH AMPHLETT BLVD., 3RD FLOOR CITY: SAN MATEO STATE: CA ZIP: 94402 BUSINESS PHONE: 6503417733 S-8 1 f67952s-8.txt FORM S-8 1 As filed with the Securities and Exchange Commission on January 4, 2001. Registration No. 333-76867 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------- PERSISTENCE SOFTWARE, INC. (Exact name of Registrant as specified in its charter) DELAWARE 94-3138935 (State of incorporation) (I.R.S. Employer Identification No.)
1720 SOUTH AMPHLETT BLVD., THIRD FLOOR SAN MATEO, CALIFORNIA 94402 (Address of principal executive offices) ----------------------- 1999 EMPLOYEE STOCK PURCHASE PLAN 1997 STOCK PLAN (Full title of the Plans) ----------------------- CHRISTOPHER T. KEENE CHIEF EXECUTIVE OFFICER PERSISTENCE SOFTWARE, INC. 1720 SOUTH AMPHLETT BLVD., THIRD FLOOR SAN MATEO, CALIFORNIA 94402 (650) 372-3600 (Name, address and telephone number, including area code, of agent for service) ----------------------- Copy to: Laurel Finch Venture Law Group A Professional Corporation 2800 Sand Hill Road Menlo Park, California 94025 (650) 854-4488 Page 1 of 9 Pages Exhibit Index on Page 9 (Calculation of Registration Fee on following page) 2
- -------------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE Proposed Proposed Maximum Maximum Amount Maximum Aggregate Amount of to be Offering Price Offering Price Registration Title of Securities to be Registered Registered(1) Per Share Fee - -------------------------------------------------------------------------------------------------------------------- 1999 EMPLOYEE STOCK PURCHASE PLAN Common Stock, $0.001 par value......................... 1,192,697 Shares $3.613(2) $ 4,309,214.261 $1,077.30 1997 STOCK PLAN Common Stock, $0.001 par value......................... 4,200,000 Shares $4.250(3) $17,850,000 $4,462.50 TOTAL 5,392,697 Shares
- -------------- (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under any of the Plans being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933 (the "Securities Act") solely for the purpose of calculating the registration fee. The computation is based on the average of the high and low sale prices of the Common Stock as reported on The Nasdaq National Market on January 4, 2001, multiplied by 85%, which is the percentage of the trading purchase price applicable to purchases under the referenced Plan. (3) Estimated in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee. The computation with respect to unissued options is based upon the average of the high and low sale prices of the Common Stock as reported on The Nasdaq National Market on January 2, 2001. -2- 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 1999; (b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000; (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed with the Commission under Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on April 23, 1999, 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 securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing such documents. Item 4. DESCRIPTION OF SECURITIES. Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. As of the date of this Registration Statement, attorneys of Venture Law Group and an investment partnership controlled by Venture Law Group beneficially own an aggregate of 6,551 shares of Common Stock. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Certificate of Incorporation reduces the liability of a director to the corporation or its shareholders for monetary damages for breaches of his or her fiduciary duty of care to the fullest extent permissible under Delaware law. The Bylaws of the Registrant further provide for indemnification of corporate agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, the Registrant has entered into Indemnification Agreements with its officers and directors. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS.
Exhibit Number ------- 5.1 Opinion of Venture Law Group, a Professional Corporation. 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Consent of Independent Auditors. 24.1 Powers of Attorney (see page 6).
- --------------- -3- 4 Item 9. UNDERTAKINGS. 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 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 purposes 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. The undersigned 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 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. Insofar as the 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 a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Registrant will, unless in the opinion of its counsel the question has already been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of 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. [Signature Pages Follow] -4- 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, Persistence Software, Inc., a corporation organized and existing under the laws of the State of Delaware, 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 San Mateo, State of California, on this January 4, 2001. PERSISTENCE SOFTWARE, INC. By: /s/ CHRISTOPHER T. KEENE ------------------------------------- Christopher T. Keene Chief Executive Officer -5- 6 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christopher T. Keene and Christine Russell, jointly and severally, his or her attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, 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 fully as he or she might or could do in person, and ratifying and confirming all that the attorneys-in-fact and agents, or his or her substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- Chief Executive Officer (Principal January 4, 2001 /s/ CHRISTOPHER T. KEENE Executive Officer) and Director - ----------------------------- Christopher T. Keene /s/ CHRISTINE RUSSELL Chief Financial Officer (Principal January 4, 2001 - ------------------------------ Financial and Accounting Officer) Christine Russell /s/ GREGORY ENNIS Director January 4, 2001 - ------------------------------ Gregory Ennis /s/ JACK L. HANCOCK Director January 4, 2001 - ------------------------------ Jack L. Hancock /s/ MERRITT LUTZ Director January 4, 2001 - ------------------------------ Merritt Lutz /s/ JOSEPH P. ROEBUCK Director January 4, 2001 - ------------------------------ Joseph P. Roebuck Director - ------------------------------ Sanjay Vaswani /s/ JEFFREY T. WEBBER Director January 4, 2001 - ------------------------------ Jeffrey T. Webber
-6- 7 INDEX TO EXHIBITS
Exhibit Number ------- 5.1 Opinion of Venture Law Group, a Professional Corporation 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Independent Auditors' Consent. 24.1 Powers of Attorney (see page 6).
EX-5.1 2 f67952ex5-1.txt EXHIBIT 5.1 1 EXHIBIT 5.1 January 4, 2001 Persistence Software, Inc. 1720 South Amphlett Blvd., Third Floor San Mateo, CA 94402 REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 (the "Registration Statement") filed by you with the Securities and Exchange Commission (the "Commission") on January 4, 2001 in connection with the registration under the Securities Act of 1933, as amended, of a total of 5,392,697 shares of your Common Stock (the "Shares") reserved for issuance under the 1997 Stock Plan and the 1999 Employee Stock Purchase Plan. As your counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares. It is our opinion that upon conclusion of the proceedings being taken or contemplated by us, as your counsel, to be taken prior to the issuance of the Shares, and upon completion of the proceedings being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares when issued and sold in the manner described in the Registration Statement will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and in any amendment thereto. Very truly yours, /s/ VENTURE LAW GROUP -------------------------- VENTURE LAW GROUP A Professional Corporation EX-23.2 3 f67952ex23-2.txt EXHIBIT 23.2 1 Exhibit 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Persistence Software, Inc. on Form S-8 of our report dated January 28, 2000, appearing in the Annual Report on Form 10-K of Persistence Software, Inc. for the year ended December 31, 1999. /s/ DELOITTE & TOUCHE LLP - ------------------------- San Jose, California January 3, 2001 -----END PRIVACY-ENHANCED MESSAGE-----