As filed with the Securities and Exchange Commission on August 2, 1996.
Registration No.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------------
GUPTA CORPORATION
(Exact name of Registrant as specified in its charter)
CALIFORNIA 94(2874178)
- ---------------------------------- -------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
1060 Marsh Road
Menlo Park, California 94025
(Address of principal executive offices)
-----------------------
1995 STOCK OPTION PLAN
(Full title of the Plan)
-----------------------
Samuel M. Inman
President and Chief Executive Officer
GUPTA CORPORATION
1060 Marsh Road
Menlo Park, California 94025
(415) 321-9500
(Name, address and telephone number of agent for service)
-----------------------
Copies to:
TAE HEA NAHM, ESQ.
JOHN V. BAUTISTA, ESQ.
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
(415) 854-4488
Page 1
Exhibit Index is on Page 10.
(Calculation of Registration Fee on following page)
- --------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Securities to be Registered Maximum Amount Maximum Maximum Amount of
to be Registered Offering Price Aggregate Registration
Per Share Offering Price Fee
- --------------------------------------------------------------------------------------------------------------------
1995 Stock Option Plan
Common Stock $.01 par value, 589,199 shares $ 5.92 (1) $ 3,488,058 $ 1,202.78
Issuable upon Exercise of
Outstanding Options
Common Stock $.01 par value, 410,801 shares $ 4.375 (2) $ 1,797,254 $ 619.74
Reserved for Grant of Additional
Options
TOTAL 1,000,000 shares $ 5.285 $ 5,285,312 $ 1,822.52
(1) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee.
Computation based upon the average of the high and low prices of the
Common Stock as reported in the NASDAQ National Market System on July 29,
1996 because the price at which the options to be granted in the future may
be exercised is not currently determinable.
2
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference:
ITEM 3(A)
The Registrant's latest annual report on Form 10-K filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), which contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
ITEM 3(B)
All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act, since the end of the fiscal year covered by the
annual report on Form 10-K referred to in (a) above.
ITEM 3(C)
The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
under Section 12 of the Exchange Act on December 17, 1992, as amended by
Amendment No. 1 to Form 8-A filed on January 29, 1993, and including any
further 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 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
Certain legal matters with respect to the legality of the issuance of
the Common Stock registered hereby will be passed upon for the Registrant
by Venture Law Group, Menlo Park, California. As of the date of this
Registration Statement, certain members of Venture Law Group
3
and investment partnerships of which members of Venture Law Group are
partners beneficially own 28,000 shares of the Registrant's Common Stock.
ITEM 6 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Articles of Incorporation limit the liability of
directors for monetary damages to the maximum extent permitted by
California law. Such limitation of liability has no effect on the
availability of equitable remedies, such as injunctive relief or
rescission. The Registrant's By-laws include provisions whereby the
directors, officers and other agents of the Company are to be indemnified
against certain liabilities to the fullest extent permitted by the
California Corporations Code. Pursuant to approval of the Board of
Directors, the Registrant entered into indemnification agreements with each
of its current directors and officers which provide for indemnification of,
and advancement of expenses to, such persons to the greatest extent
permitted by the California Corporations Code, including by reason of
action or inaction occurring in the past and circumstances in which
indemnification and the advancement of expenses are discretionary under
California law. It is the opinion of the staff of the Securities and
Exchange Commission that indemnification provisions such as those contained
in these agreements have no effect on a director's or officer's liability
under the federal securities laws. In addition, the Registrant maintains
an insurance policy covering its officers and directors under which the
insurer has agreed to pay, subject to certain exclusions, the amount of any
claim made against the officers or directors of the Registrant for wrongful
acts that such officers or directors may otherwise be required to pay or
for which the Registrant is required to indemnify such officers or
directors.
ITEM 7 EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
4
ITEM 8 EXHIBITS
Exhibit
Number Document
------ ---------------------------------
4.1 1995 Stock Option Plan and Form of Option
Agreement for Use with Plan.
5.1 Opinion of Counsel as to Legality of
Securities Being Registered.
23.1 Consent of Independent Public Accountants
(see page 9).
23.2 Consent of Counsel (contained in Exhibit 5.1
hereto).
24.0 Power of Attorney (see page 7).
ITEM 9 UNDERTAKINGS
A. 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 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.
(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. 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.
5
C. 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
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Gupta Corporation, a corporation organized and existing under the laws of the
State of California, 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 Menlo Park, State of California, on July 31,
1996.
GUPTA CORPORATION
By: /s/ Samuel M. Inman
-----------------------------------
Samuel M. Inman, President, and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Craig W. Johnson and Samuel M. Inman,
jointly and severally, 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.
7
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/UMANG P. GUPTA Chairman of the Board and Director July 31, 1996
- ---------------------
(Umang P. Gupta)
/s/SAMUEL M. INMAN President and Chief Executive Officer July 31, 1996
- --------------------- (Principal Executive Officer)
(Samuel M. Inman)
/s/RICHARD A. GELHAUS Chief Financial Officer (Principal July 31, 1996
- -----------------------
(Richard A. Gelhaus) Financial and Accounting Officer) and
Senior Vice President of Finance and
Operations
/s/WILLIAM O. GRABE Director July 31, 1996
- ----------------------
(William O. Grabe)
/s/MAX D. HOPPER Director July 31, 1996
- ----------------------
(Max D. Hopper)
/s/D. BRUCE SCOTT Director July 31, 1996
- ----------------------
(D. Bruce Scott)
/s/ANTHONY SUN Director July 31, 1996
- ----------------------
(Anthony Sun)
8
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
statement on Form S-8 of our report dated July 15, 1996, appearing on page 35
of the Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
August 1, 1996
9
INDEX TO EXHIBITS
Exhibit Page
Number No.
- -------- ----
4.1 1995 Stock Option Plan and Form of Option Agreement for
Use with Plan.
5.1 Opinion of Counsel as to legality of securities being
registered.
23.1 Consent of Independent Public Accountants (see page 9).
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.0 Power of Attorney (see page 7).
10