As filed with the Securities and Exchange Commission on December 28, 2001
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
COMSHARE, INCORPORATED
(Exact name of registrant as specified in its charter)
Michigan 38-1804887
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
555 Briarwood Circle, Ann Arbor, Michigan 48108
(734) 994-4800
(Address, including zip code, and telephone number,
including area code, of registrant's Principal Executive Office)
Comshare, Incorporated
Employee Stock Purchase Plan
(Full Title of the Plan)
PATRICK D. BERRYMAN
Comshare, Incorporated
555 Briarwood Circle, Ann Arbor, Michigan 48108
(734) 994-4800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
THOMAS S. VAUGHN
Dykema Gossett PLLC
400 Renaissance Center
Detroit, Michigan 48243-1668
(313) 568-6524
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
To be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
- ---------------------- ----------------- -------------------------- ---------------------------- --------------------
Common Stock 800,000 Shares** $2.92* $2,336,000* $558.30*
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* Estimated solely for the purpose of calculating the registration fee,
based on the average of the high and low sale prices of the Common
Stock on the NASDAQ National Market on December 19, 2001, in accordance
with Rule 457(h).
** The number of shares may be adjusted to prevent dilution from stock
splits, stock dividends and similar transactions. This Registration
Statement shall cover any such additional shares in accordance with
Rule 416(a).
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Comshare, Incorporated (the "Company")
with the Securities and Exchange Commission ("SEC") are incorporated herein by
reference:
The contents of Registration Statement on Form S-8, file No.
033-86908, filed on November 30, 1994, registering 300,000 shares
of Common Stock of the Company, to be issued pursuant to the
Company's Employee Stock Purchase Plan; and the contents of
Registration Statement on Form S-8, file No. 333-93549, filed on
December 23, 1999, registering 500,000 shares of Common Stock of
the Company, to be issued pursuant to the Company's Employee Stock
Purchase Plan.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Michigan Business Corporation Act
The Company is organized under the Michigan Business Corporation Act
(the "MBCA") which, in general, empowers Michigan corporations to indemnify a
person who was or is a party or is threatened to be made a party to a
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of the corporation, by reason of the fact that
such person is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
partner, trustee, employee or agent of another enterprise, against expenses,
including attorney's fees, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred in connection therewith if the
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders and, with
respect to a criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful.
The MBCA also empowers Michigan corporations to provide similar
indemnity to such a person for expenses, including attorney's fees, and amounts
paid in settlement actually and reasonably incurred by the person in connection
with actions or suits by or in the right of the corporation if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the interests of the corporation or its shareholders, except in
respect of any claim, issue or matter in which the person has been found liable
to the corporation, unless the court determines that the person is fairly and
reasonably entitled to indemnification in view of all relevant circumstances, in
which case indemnification is limited to reasonable expenses incurred. If a
person is successful in defending against a derivative action or third-party
action, the MBCA requires that a Michigan corporation indemnify the person
against expenses incurred in the action.
The MBCA also permits a Michigan corporation to purchase and maintain
on behalf of such a person insurance against liabilities incurred in such
capacities. The Company has obtained a policy of directors' and officers'
liability insurance.
The MBCA further permits Michigan corporations to limit the personal
liability of directors for a breach of their fiduciary duty. However, the MBCA
does not eliminate or limit the liability of a director for any of the
following: (i) the amount of a financial benefit received by a director to which
he or she is not entitled; (ii) intentional infliction of harm on the
corporation or the shareholders; (iii) a violation of Section 551 of the MBCA;
or (iv) an intentional criminal act. If a Michigan corporation adopts such a
provision, then the Michigan corporation may indemnify its directors without a
determination that they have met the applicable standards for indemnification
set forth above, except, in the case of an action or suit by or in the right of
the corporation, only against expenses incurred in the action. The foregoing
does not apply if the director's actions fall into one of the exceptions to the
limitation on personal liability discussed above, unless a court determines that
the person is fairly and reasonably entitled to indemnification in view of all
relevant circumstances.
2
Articles of Incorporation of the Registrant
The Company's Articles of Incorporation, which limit liability to the
maximum extent permitted by law, provide that a director of the Company shall
not be personally liable to the Company or its shareholders for monetary damages
for breach of the director's fiduciary duty. As a result of the inclusion of
such provision, shareholders of the Company may be unable to recover monetary
damages against directors for actions taken by them which constitute negligence
or which are in violation of their fiduciary duties, although it may be possible
to obtain injunctive or other equitable relief with respect to such actions.
The Company's Articles of Incorporation generally require the Company
to indemnify officers and directors to the fullest extent legally possible under
the MBCA and provide that similar indemnification may be afforded employees and
agents. In addition, the Articles of Incorporation require the Company to
indemnify any person who is or was serving at the request of the Company as a
director, officer, partner, trustee, administrator, employee or agent of another
corporation, partnership, joint venture, trust, or other enterprise, to the same
degree as the foregoing indemnification of directors and officers. The Company's
Articles of Incorporation further provide for the advancement of litigation
expenses at the request of a director or officer under certain circumstances.
Directors and offices are entitled to bring suit against the Company for failure
to make a requested indemnification and the Company has the burden of proof to
show such indemnification to be improper.
Item 8. EXHIBITS
The following exhibits are filed with this registration statement:
5 Opinion of Dykema Gossett PLLC with respect to the
legality of the Common Stock to be registered
hereunder.
4.01 Articles III, V and VI of the Restated Articles of
Incorporation of the Registrant, as amended -
incorporated by reference to Exhibit 3.01 to the
Registrant's Form 10-K Report for the fiscal year
ended June 30, 1998.
4.02 Articles III, IV, V, VI and XI of the Restated Bylaws
of the Registrant, as amended - incorporated by
reference to Exhibit 3.02 to the Registrant's Form
8-K Report filed March 9, 2001.
4.03 Specimen form of Common Stock Certificate -
incorporated by reference to Exhibit 4(c) to the
Registrant's Form S-1 Registration Statement No.
2-29663.
4.04 Rights Agreement, dated as of September 16, 1996,
between Comshare, Incorporated and KeyBank National
Association, as Rights Agent - incorporated by
reference to Exhibit 2 to the Registrant's
Registration Statement on Form 8-A, filed on
September 17, 1996.
4.05 Form of certificate representing Rights (included as
Exhibit B to the form of Rights Agreement filed as
Exhibit 4.04). Pursuant to the Rights Agreement,
Rights Certificates will not be mailed until after
the earlier of (i) the tenth business day (or such
later date as may be determined by the Board of
Directors, with the concurrence of a majority of the
Continuing Directors, prior to such time as any
person becomes an Acquiring Person) after the date of
the commencement of, or first public announcement of
the intent to commence, a tender or exchange offer by
any person or group of affiliated or associated
persons (other than the Company or certain entities
affiliated with or associated with the Company), if,
upon consummation thereof, such person or group of
affiliated or associated persons would be the
beneficial owner of 15% or more of such outstanding
shares of Common Stock - incorporated by reference to
Exhibit 1 to the Registrant's Registration Statement
on Form 8-A, filed on September 17, 1996.
3
4.06 Agreement among Computershare Investor Services,
Inc., Harris Trust and Savings Bank and the
Registrant - incorporated by reference to Exhibit
4.11 to the Registrant's Form 10-K Report for the
fiscal year ended June 30, 2001.
23.01 Consent of Arthur Andersen L.L.P.
23.02 Consent of Dykema Gossett PLLC
24 Power of Attorney (see "Signatures")
99.01 Comshare, Incorporated Employee Stock Purchase Plan -
incorporated by reference to Exhibit 10.20 to the
Registrant's Form 10-Q Report for the quarter ended
September 30, 1994.
99.02 First Amendment to the Comshare, Incorporated
Employee Stock Purchase Plan - incorporated by
reference to Exhibit 10.01 to the Registrant's Form
10-Q Report for the quarter ended September 30, 1999.
99.03 Second Amendment to the Comshare, Incorporated
Employee Stock Purchase Plan - incorporated by
reference to Exhibit 10.02 to the Registrant's Form
10-Q Report for the quarter ended September 30, 1999.
99.04 Third Amendment to the Comshare, Incorporated
Employee Stock Purchase Plan - incorporated by
reference to Exhibit 10.03 to the Registrant's Form
10-Q Report for the quarter ended September 30, 1999.
99.05 Fourth Amendment to the Comshare, Incorporated
Employee Stock Purchase Plan.
4
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 Ann Arbor, State of Michigan on December 19, 2001.
COMSHARE, INCORPORATED
By: /s/ Dennis G. Ganster
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Its: Chairman, President and
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Chief Executive Officer
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POWER OF ATTORNEY
Each of the undersigned whose signature appears below hereby constitutes
and appoints Brian J. Jarzynski, Patrick D. Berryman or Thomas S. Vaughn, and
each of them acting alone, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, under the Securities Act
of 1933.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
indicated capacities as of December 19, 2001.
SIGNATURE TITLE
/s/ Dennis G. Ganster Chairman of the Board, President, Chief Executive Officer
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Dennis G. Ganster and Director
/s/ Brian J. Jarzynski Vice President, Chief Financial Officer and Treasurer
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Brian J. Jarzynski
/s/ Kristin L. G. Marsh Corporate Controller and Chief Accounting Officer
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Kristin L. G. Marsh
Director
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Geoffrey B. Bloom
/s/ Richard L. Crandall Director
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Richard L. Crandall
/s/ Daniel T. Carroll Director
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Daniel T. Carroll
/s/ Kathryn A. Jehle Director
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Kathryn A. Jehle
Director
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Alan G. Merten
/s/ John F. Rockart Director
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John F. Rockart
5
INDEX TO EXHIBITS
Number Description
5 Opinion of Dykema Gossett PLLC with respect to the legality of the
Common Stock to be registered hereunder
23.01 Consent of Arthur Andersen L.L.P., independent accountants
23.02 Consent of Dykema Gossett PLLC (contained in Exhibit 5)
99.05 Fourth Amendment to the Comshare, Incorporated Employee Stock Purchase Plan
6