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As filed with the Securities and Exchange Commission on July 29, 2004
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Applix, Inc.
| Massachusetts (State or Other Jurisdiction of Incorporation or Organization) | 04-2781676 (I.R.S. Employer Identification No.) |
| 289 Turnpike Road Westboro, Massachusetts (Address of Principal Executive Offices) | 01581 (Zip Code) |
2001 Employee Stock Purchase Plan
2004 Equity Incentive Plan
(Full Title of the Plan)
Patrick J. Rondeau, Esq.
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
(Name and Address of Agent For Service)
(617) 526-6000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
| Proposed | Proposed | |||||||||||||||
| Title of | Maximum | Maximum | ||||||||||||||
| Securities to be | Amount to be | Offering Price Per | Aggregate | Amount of | ||||||||||||
| Registered | Registered(1) | Share | Offering Price | Registration Fee | ||||||||||||
| Common Stock, $0.0025 par value per share (including the associated Preferred Stock Purchase Rights) | 1,500,000 shares(2) | $ | 4.01 | (3) | $ | 6,015,000 | (3) | $ | 762.11 | |||||||
| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be |
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| offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. | ||||
| (2) | Consists of 500,000 shares issuable under the 2001 Employee Stock Purchase Plan and 1,000,000 shares issuable under the 2004 Equity Incentive Plan. | |||
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the NASDAQ SmallCap Market on July 26, 2004. | |||
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is included in documents sent or given to participants in the 2001 Employee Stock Purchase Plan and the 2004 Equity Incentive Plan of Applix, Inc., a Massachusetts corporation (the “Registrant”), covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to participants in the 2001 Employee Stock Purchase Plan and the 2004 Equity Incentive Plan of the Registrant covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the “Commission”). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference:
(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003 as filed with the Commission on March 30, 2004, as amended by the Registrant’s Amendment No. 1 to Annual Report on Form 10-K filed with the Commission on April 7, 2004.
(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 annual report referred to in (a) above, comprised of the following:
(i) The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2004 as filed with the Commission on May 17, 2004.
(c) The description of the securities contained in the Registrant’s registration statements on Form 8-A as filed with the Commission under the Exchange Act on October 28, 1994 and September 20, 2000 and Form 8-A/A as filed with the Commission under the Exchange Act on March 4, 2004.
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 the filing of such documents. Any statement contained 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.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Wilmer Cutler Pickering Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement. Patrick J. Rondeau, a partner of Wilmer Cutler Pickering Hale and Dorr LLP, serves as Assistant Clerk to the Registrant.
Item 6. Indemnification of Directors and Officers.
Section 2.02(b)(4) of Chapter 156D of the Massachusetts General Laws allows a corporation to eliminate or limit the personal liability of a director of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director notwithstanding any provision of law imposing such liability, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of an improper distribution or obtained an improper personal benefit. The Registrant has included such a provision in its articles of organization.
Section 8.51(a) of Chapter 156D of the Massachusetts General Laws provides that a corporation may indemnify its directors against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred in connection with any litigation or other legal proceeding brought against any director by virtue of his position as a director of the Registrant unless he is deemed to have not acted in good faith in the reasonable belief that his action was in the best interest of the corporation. As noted below, the Registrant has provided for director indemnification in its articles of organization and bylaws.
Section 8.52 of Chapter 156D of the Massachusetts General Laws provides that a corporation must indemnify a director who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because he was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.
Section 8.56(a) of Chapter 156D of the Massachusetts General Laws (“Section 8.56”) provides that a corporation may indemnify its officers to the same extent as its directors and, for officers that are not directors, to the extent provided by (i) the articles of organization, (ii) the bylaws, (iii) a vote of the board of directors or (iv) a contract. In all instances, the extent to which a corporation provides indemnification to its officers under Section 8.56 is optional. As noted below, the Registrant has provided for officer indemnification in its articles of organization and bylaws.
The Registrant’s articles of organization and bylaws provide that a director or officer of the Registrant shall be indemnified by the Registrant against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement reasonably incurred in connection with any litigation or other legal proceeding brought against him by virtue of his position as a director or officer of the Registrant unless he is deemed (in the manner provided in the articles of organization and bylaws, respectively) to have not acted in good faith in the reasonable belief that his action was in the best interest of the Registrant. Expenses incurred in defending a civil or criminal action, suit or proceeding shall be advanced by the Registrant to a director or officer, at his request, upon receipt of an undertaking by the director or officer to repay such amount if it is ultimately determined that he is not entitled to indemnification.
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The Registrant’s articles of organization and bylaws provide that the indemnification provided therein is not exclusive, and the Registrant’s articles of organization provide that in the event that the Massachusetts General Laws are amended to expand the indemnification permitted to directors or officers, the Registrant must indemnify those persons to the fullest extent permitted by such law as so amended. The Registrant’s bylaws provide that the indemnification provided therein shall be offset to the extent of any other source of indemnification or applicable insurance coverage.
The Registrant has purchased and maintains insurance coverage under a policy insuring directors and officers of the Registrant against certain liabilities which they may incur as directors or officers of the Registrant, which may include coverage for liabilities arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. 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;
(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; and
(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 (i) and (ii) do not apply if 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 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, 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 initialbona fideoffering 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.
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2. 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 initialbona fideoffering thereof.
3. 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.
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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 Westboro, Massachusetts on this 28th day of July, 2004.
| APPLIX, INC. | ||||
| By: | /s/ David C. Mahoney | |||
| David C. Mahoney | ||||
| President and Chief Executive Officer | ||||
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Applix, Inc., hereby severally constitute and appoint David C. Mahoney, Milton A. Alpern and Patrick J. Rondeau, and each of them singly, our true and lawful attorneys with full power to 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 subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Applix, 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 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 | ||
| /s/ David C. Mahoney | President, Chief Executive | July 28, 2004 | ||
| Officer, and Director | ||||
| David C. Mahoney | (Principal executive officer) | |||
| /s/ Milton A. Alpern | Chief Financial Officer | July 28, 2004 | ||
| (Principal financial and | ||||
| Milton A. Alpern | accounting officer) | |||
| /s/ John D. Loewenberg | Director | July 28, 2004 | ||
| John D. Loewenberg | ||||
| /s/ Brad Fire | Director | July 28, 2004 | ||
| Brad Fire | ||||
| /s/ Peter Gyenes | Director | July 28, 2004 | ||
| Peter Gyenes |
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| Signature | Title | Date | ||
| /s/ Alain J. Hanover | Director | July 28, 2004 | ||
| Alain J. Hanover | ||||
| /s/ Charles F. Kane | Director | July 28, 2004 | ||
| Charles F. Kane |
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INDEX TO EXHIBITS
| Number | Description | |
| 4.1(1) | Restated Articles of Organization of the Registrant | |
| 4.2 | Amended and Restated By-Laws of the Registrant | |
| 4.3(2) | Form of Rights Agreement, dated as of September 18, 2000, between the Company and American Stock Transfer of Trust Company, which includes as Exhibit A the terms of the Series A Junior Participating Preferred Stock, as Exhibit B the Form of Rights Certificate, and as Exhibit C the Summary of Rights to Purchase Preferred Stock. | |
| 4.4(3) | Amendment No. 1, dated as of February 27, 2004, to the Rights Agreement, dated as of September 18, 2000, between the Registrant and American Stock Transfer & Trust Company, as Rights Agent | |
| 5.1 | Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant | |
| 23.1 | Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Deloitte & Touche LLP | |
| 23.3 | Consent of Ernst & Young LLP | |
| 24 | Power of attorney (included on the signature pages of this registration statement) |
| (1) | Previously filed with the Securities and Exchange Commission as Exhibit 3.3 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-85688) and incorporated herein by reference. | |
| (2) | Previously filed with the Securities and Exchange Commission as Exhibit 1 to the Registrant’s Registration Statement on Form 8-A, filed September 20, 2000 (File No. 000-25040) and incorporated herein by reference. | |
| (3) | Previously filed with the Securities and Exchange Commission as Exhibit 4.2 to the Registrant’s Current Report on Form 8-K/A, filed March 4, 2004 (File No. 000-25040) and incorporated herein by reference. |