-----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, DWUiWen2KFU/hTQxeqK7SOVpVNuQtl8Qy2yivm2PW4l04OuV02dH5xzkGExAoiLF C5aYGMeLmJY85uH/JKqFiQ== 0000950149-00-000738.txt : 20000403 0000950149-00-000738.hdr.sgml : 20000403 ACCESSION NUMBER: 0000950149-00-000738 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000331 EFFECTIVENESS DATE: 20000331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OMNIS TECHNOLOGY CORP CENTRAL INDEX KEY: 0000820738 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943046892 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-33672 FILM NUMBER: 589897 BUSINESS ADDRESS: STREET 1: 981 INDUSTRIAL WAY STREET 2: BUILDING B CITY: SAN CARLOS STATE: CA ZIP: 94070-4117 BUSINESS PHONE: (650)632-7100 MAIL ADDRESS: STREET 1: 989 E HILLSDALE BLVD. #400 CITY: FOSTER CITY STATE: CA ZIP: 94404 FORMER COMPANY: FORMER CONFORMED NAME: BLYTH HOLDINGS INC DATE OF NAME CHANGE: 19920703 S-8 1 OMNIS TECHNOLOGY CORPORATION FORM S-8 1 As filed with the Securities and Exchange Commission March 30, 2000 Registration No. 333- - SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------- OMNIS TECHNOLOGY CORPORATION (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------------------------------- DELAWARE 94-3046892 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 981 INDUSTRIAL BOULEVARD, BUILDING B SAN CARLOS, CA 94070 (650) 632-7124 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ---------------------------------- OMNIS TECHNOLOGY CORPORATION 1999 STOCK OPTION PLAN 1994 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED (FULL TITLE OF THE PLAN) ---------------------------------- GWYNETH GIBBS PRESIDENT OMNIS TECHNOLOGY CORPORATION 981 INDUSTRIAL BOULEVARD, BUILDING B SAN CARLOS, CA 94070 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------------------------- Copy to: STAFFORD MATTHEWS, ESQ. MORRISON & FOERSTER 425 MARKET STREET SAN FRANCISCO, CA 94105 (415) 268-7000 ---------------------------- CALCULATION OF REGISTRATION FEE
====================================================================================================== PROPOSED PROPOSED MAXIMUM MAXIMUM PROPOSED MAXIMUM AMOUNT OFFERING AGGREGATE AMOUNT OF TITLE OF EACH CLASS TO BE PRICE OFFERING REGISTRATION OF SECURITIES REGISTERED PER SHARE(1) PRICE FEE - ------------------------------------------------------------------------------------------------------- Common Stock, $.10 par value - Newly reserved under the 1994 Employee Stock Purchase Plan, as amended 150,000 shares $15.00 $ 2,250,000 $ 594.00 - Newly reserved under the Omnis Technology Corporation 1999 Stock Option Plan 1,500,000 shares $15.00 $22,500,000 $5,940.00 ======================================================================================================
- -------------- (1) The Proposed Maximum Offering Price Per Share ("Offering Price") was estimated in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the "Act"), based on the average of bid and asked prices of the small business issuer's Common Stock in the over the counter market on March 30, 2000. 2 OMNIS TECHNOLOGY CORPORATION REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission: (a) Registrant's Annual Report on Form 10-KSB/A for the fiscal year ended March 31, 1999 (the "Annual Report"), filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) Registrant's Current Report on Form 8-K filed January 7, 2000, pursuant to Section 13(a) of the Exchange Act; (c) Registrant's definitive proxy statement dated September 7, 1999, filed in connection with the September 29, 1999 Annual Meeting of Stockholders of the Company; (d) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal year covered by the Annual Report; and (e) The description of the Registrant's capital stock set forth in the Registrant's Registration Statement on Form 8-A filed with the Commission on December 22, 1987. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered 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 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. The Registrant's Restated Certificate of Incorporation, as amended (the "Certificate"), provides that, pursuant to Delaware law, none of its directors shall be personally liable for monetary damages for breach of the director's fiduciary duty as a director. This provision in the Certificate does not eliminate the fiduciary duty of directors, and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain to the extent available under Delaware law. In addition, 2 3 each director may be liable for breach of the director's duty of loyalty to the Registrant or its stockholders, for acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law, for any transaction from which the director derived improper personal benefit and/or for dividends or purchases or redemptions related to its shares that are unlawful under Section 174 of the General Corporation Law of Delaware. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws. In addition, the Registrant's Bylaws provide that the Registrant will indemnify its directors and officers, and may indemnify its employees and other agents, to the fullest extent permitted by Delaware law. The Registrant believes that indemnification under its Bylaws covers at least negligence and gross negligence by indemnified parties, and permits the Registrant to advance litigation expenses in the case of stockholder derivative actions or other actions, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification. The Registrant has purchased liability insurance for its officers and directors. The Registrant has entered into separate indemnification agreements with its directors and officers. These agreements require the Registrant among other things, to indemnify them against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities arising from actions not taken in good faith or in a manner the indemnitee believed to be opposed to the best interests of the Registrant), to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified and to obtain directors' liability insurance if available on reasonable terms. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Securities and Exchange Commission (the "Commission"), such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. The Registrant believes that its Certificate of Incorporation and Bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
Exhibit Number 5.1 Opinion of Counsel as to legality of securities being registered. 10.1 1994 Employee Stock Purchase Plan, as amended, and form of subscription agreement.(1) 10.2 Omnis Technology Corporation 1999 Stock Option Plan and form of option agreement.(2) 23.1 Independent Auditors' Consent. 23.2 Consent of Counsel (contained in Exhibit 5.1 hereto). 24.1 Power of Attorney (see p.5).
(1) Incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (Registration Number 333-38449) filed October 22, 1997. 3 4 (2) Incorporated herein by reference to the Registrant's Annual Report on Form 10-KSB/A, as amended, for the fiscal year ended March 31, 1999, filed by the Registrant with the Commission on July 29, 1999. 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 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. (4) 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 (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 the initial bona fide offering thereof. (5) 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 Securities and Exchange 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. 4 5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 San Carlos, State of California, on this 30th day of March, 2000. OMNIS TECHNOLOGY CORPORATION By: /s/ GWYNETH GIBBS --------------------------------- Gwyneth Gibbs, President POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Gwyneth Gibbs, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his 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 - --------- ----- ---- GWYNETH GIBBS President; Interim Chief March 30, 2000 - ---------------------------- Executive Officer; Director Gwyneth Gibbs (Principal Executive Officer) PHILLIP BARRETT Chairman; Director March 30, 2000 - ---------------------------- Phillip Barrett GERALD CHEW Director March 30, 2000 - ---------------------------- Gerald Chew JAMES DORST Chief Financial Officer; Chief March 30, 2000 - ---------------------------- Operating Officer; Director James Dorst DOUGLAS MARSHALL Director March 30, 2000 - ---------------------------- Douglas Marshall GEOFFREY WAGNER Secretary; Director March 30, 2000 - ---------------------------- Geoffrey Wagner BRYCE BURNS Director March 30, 2000 - ---------------------------- Bryce Burns
5 6 INDEX TO EXHIBITS
Exhibit Number ------ 5.1 Opinion of Counsel as to legality of securities being registered. 10.1 1994 Employee Stock Purchase Plan, as amended, and form of subscription agreement.(1) 10.2 Omnis Technology Corporation 1999 Stock Option Plan and form of option agreement.(2) 23.1 Independent Auditors' Consent. 23.2 Consent of Counsel (contained in Exhibit 5.1 hereto). 24.1 Power of Attorney (see p.5).
(1) Incorporated herein by reference to the Registrant's Registration Statement on Form S-8 (Registration Number 333-38449) filed October 22, 1997. (2) Incorporated herein by reference to the Registrant's Annual Report on Form 10-KSB/A, as amended, for the fiscal year ended March 31, 1999, filed by the Registrant with the Commission on July 29, 1999. 6 EX-5.1 2 OPINION OF COUNSEL 1 Exhibit 5.1 OPINION OF COUNSEL AS TO LEGALITY OF SECURITIES March 30, 2000 OMNIS Technology Corporation 981 Industrial Way San Carlos, CA 94070 RE: REGISTRATION STATEMENT ON FORM S-8 Gentlemen: We have acted as counsel to OMNIS Technology Corporation, a Delaware corporation (the "Company") in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of a total of 1,650,000 shares of Common Stock (the "Shares") and related stock options for issuance under (i) the 1999 Stock Option Plan (the "Option Plan"), and (ii) the 1994 Employee Stock Purchase Plan (the "Purchase Plan"). This opinion is being furnished in accordance with the regulations of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. We have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the establishment and amendment of the Option Plan and Purhchase Plan. Based on such review, we are of the opinion that, if, as and when the Shares are issued and sold (and the consideration therefor received) pursuant to (a) the provisions of option agreements duly authorized under the Option Plan and in accordance with the Registration Statement, or (b) duly authorized stock purchase rights granted and exercised under the Purchase Plan and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and nonassessable. We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and whch may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Option Plan or the Purchase Plan or the Shares issuable under such plans. Sincerely yours, MORRISON & FOERSTER LLP EX-23.1 3 INDEPENDENT AUDITORS CONSENT 1 EXHIBIT 23.1 INDEPENDENT AUDITORS CONSENT We have issued our report dated June 1, 1999 accompanying the consolidated financial statements of Omnis Technology Corporation included in the annual report on Form 10-KSB for the year ended March 31, 1999 which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference in the Registration Statement of the aforementioned report on Form S-8. GRANT THORNTON LLP San Francisco, California February 24, 2000 -----END PRIVACY-ENHANCED MESSAGE-----