-----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, PjLZmAvmlCev8Vw5pwoNKolT2QlNUVGiQEnWfZDiBBHu78AWIG7ic5tgVOrU0Fbg NBaTTZHvjxRgIpiq+Fap3Q== 0000950149-98-000679.txt : 19980413 0000950149-98-000679.hdr.sgml : 19980413 ACCESSION NUMBER: 0000950149-98-000679 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980409 EFFECTIVENESS DATE: 19980409 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENLIGHTEN SOFTWARE SOLUTIONS INC CENTRAL INDEX KEY: 0000919175 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943008888 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-49853 FILM NUMBER: 98591284 BUSINESS ADDRESS: STREET 1: 999 BAKER WAY STE 390 CITY: SAN MATCO STATE: CA ZIP: 94404-1578 BUSINESS PHONE: 4155780700 FORMER COMPANY: FORMER CONFORMED NAME: SOFTWARE PROFESSIONALS INC DATE OF NAME CHANGE: 19940217 S-8 1 FORM S-8 FOR ENLIGHTEN SOFTWARE, INC. 1 Registration No. UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ENLIGHTEN SOFTWARE SOLUTIONS, INC. (Exact name of registrant as specified in its charter) California 94-3008888 (State or other jurisdiction (I.R.S. employer identification no.) of incorporation or organization) 999 Baker Way Fifth Floor San Mateo, CA 94404-1578 (Address of principal executive offices) (Zip code) ENLIGHTEN SOFTWARE SOLUTIONS, INC. AMENDED AND RESTATED 1992 STOCK OPTION PLAN AND INDIVIDUAL STOCK OPTION AGREEMENTS (Full title of the plan) David D. Parker President and Chief Executive Officer 999 Baker Way Fifth Floor San Mateo, CA 94404-1578 (Name and address of agent for service) Telephone number, including area code, of agent for service: (650) 578-0700 This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended. 2 CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Title of Amount to be offering price aggregate Amount of Securities to be registered(1) registered per share(2) offering price(2) registration fee - ------------------------------ ---------- ------------ ----------------- ---------------- 1992 Stock Option Plan Common Stock 424,295 $4.00 $1,697,180.00 No Par Value 75,705 $2.69 $ 203,646.45 Individual Stock Option Agreements Common Stock 50,000 $1.91 $ 95,500.00 No Par Value 32,142 $1.81 $ 58,177.02 26,250 $1.00 $ 26,250.00 26,250 $1.25 $ 32,812.50 TOTALS 634,642 $2,113,565.97 $623.50
(1) The securities to be registered include options to acquire such Common Stock. (2) Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee. As to shares subject to outstanding but unexercised options under the 1992 Stock Option Plan, the price is computed on the basis of the weighted average exercise price. As to the remaining shares under the Amended and Restated 1992 Stock Option Plan, the price is based upon the average of the high and low prices of the Common Stock on April 3, 1998, as reported on the National Association of Securities Dealers Automated Quotations System. As to the 134,642 shares under the individual stock option agreement, the price is based upon the exercise price. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference Enlighten Software Solutions, Inc. (the "Company") hereby incorporates by reference in this registration statement the following documents: (a) The Company's latest annual report on Form 10-KSB filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing audited financial statements for the Company's latest fiscal year ended December 31, 1997, and amendment thereto, as filed with the Securities and Exchange Commission (File No. 0-23446). (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the registrant document referred to in (a) above. (c) The description of the Company's Common Stock contained in the Company'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 Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities The class of securities to be offered is registered under Section 12 of the Exchange Act. Item 5. Interests of Named Experts and Counsel Inapplicable. Item 6. Indemnification of Directors and Officers The Company's Articles of Incorporation provide that the liability of the directors for monetary damages shall be eliminated to the fullest extent permissible under California law. Pursuant to California law, the Company's directors shall not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its shareholders. However, this provision does not eliminate the duty of care, and in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under California law. In addition, each director will continue to be subject to liability for (i) acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) acts or omissions that a director believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the director, (iii) any transaction from which a director derived an 4 improper personal benefit, (iv) acts or omissions that show a reckless disregard for the director's duty to the Company or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Company or its shareholders, (v) acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the Company or its shareholders, (vi) any transaction that constitutes an illegal distribution or dividend under California law, and (vii) any transaction involving an unlawful conflict of interest between the director and the Company under California law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. Item 7. Exemption From Registration Claimed Inapplicable. Item 8. Exhibits See Exhibit Index. Item 9. Undertakings (a) Rule 415 Offering 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; (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)(l)(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 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 that time shall be deemed to be the initial bona fide offering thereof. 5 (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) Filing incorporating subsequent Exchange Act documents by reference 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 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. (h) Request for acceleration of effective date or filing of registration statement on Form S-8 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. 6 SIGNATURE 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 the City of San Mateo, State of California, on March 31, 1998. Enlighten Software Solutions, Inc. By: /s/ MICHAEL A. MORGAN ------------------------------- Michael A. Morgan, Vice President, Finance and Administration, Chief Financial Officer, and Secretary 7 SIGNATURES AND POWER OF ATTORNEY The officers and directors of Enlighten Software Solutions, Inc. whose signatures appear below, hereby constitute and appoint Peter J. McDonald and Michael A. Morgan, and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign and execute on behalf of the undersigned any amendment or amendments to this registration statement on Form S-8, and each of the undersigned does hereby ratify and confirm all that each of said attorney and agent, or their or his substitutes, shall 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 by the following persons in the capacities indicated on March 31, 1998.
Signature Title - --------- ----- /s/ DAVID D. PARKER President and Chief Executive Officer - ------------------------------- David D Parker /s/ MICHAEL A. MORGAN Vice President, Finance and Administration, - ------------------------------- Chief Financial Officer, Secretary, and Michael A. Morgan Director (Principal Financial and Accounting Officer) /s/ MICHAEL SEASHOLS Chairman of the Board - ------------------------------- Michael Seashols /s/ PETER J. MCDONALD Director - ------------------------------- Peter J. McDonald /s/ PETER J. SPRAGUE Director - ------------------------------- Peter J. Sprague /s/ BRUCE CLEVELAND Director - ------------------------------- Bruce Cleveland
8 EXHIBIT INDEX 4.1 Amended and Restated Articles of Incorporation of the Company are incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission, which became effective April 19, 1994 (File No. 33-75388) 4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission, which became effective April 19, 1994 (File No. 33-75388) 5 Opinion of legality 23.1 Consent of Counsel (included in Exhibit 5) 23.2 Consent of KPMG Peat Marwick LLP 24 Power of Attorney (included in signature pages to this registration statement) EX-5 2 OPINION OF LEGALITY 1 [Cary Ware Freidenrich LLP LETTERHEAD] EXHIBIT 5 March 31, 1998 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: As legal counsel for Enlighten Software Solutions, Inc., a California corporation (the "Company"), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 500,000 shares of the Common Stock, no par value, of the Company which may be issued pursuant to the exercise of options granted under the Enlighten Software Solutions, Inc. Amended and Restated 1992 Stock Option Plan (the "Plan"), formerly the Software Professionals, Inc. First Amended and Restated 1992 Stock Option Plan and 134,642 shares of Common Stock, no par value, of the Company which may be issued pursuant to the exercise of individual stock options (the "Individual Options"). We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California and the federal law of the United States. Based on such examination, we are of the opinion that the 634,642 shares of Common Stock which may be issued upon exercise of options granted under the Plan and the Individual Options are duly authorized shares of the Company's Common Stock, and, when issued against receipt of the consideration therefor in accordance with the provisions of the Plan and the Individual Options, as applicable, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement. Respectfully submitted, /s/ GRAY CARY WARE & FREIDENRICH, LLP EX-23.2 3 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Enlighten Software Solutions, Inc.: We consent to incorporation herein by reference of our report dated February 4, 1998, relating to the consolidated balance sheets of Enlighten Software Solutions, Inc. and subsidiary as of December 31, 1997 and 1996, and the related consolidated statements of operations, shareholders' equity, and cash flows for each of the years in the two-year period ended December 31, 1997, which report appears in the December 31, 1997, annual report on Form 10-KSB of Enlighten Software Solutions, Inc. /s/ KPMG Peat Marwick LLP Mountain View, California March 27, 1998 10 -----END PRIVACY-ENHANCED MESSAGE-----