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As filed with the Securities and Exchange Commission on June 21, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APPLIX, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2781676
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
112 TURNPIKE ROAD, WESTBORO, MASSACHUSETTS 01581-2831
(Address of Principal Executive Offices) (Zip Code)
1994 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
PATRICK J. RONDEAU, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and Address of Agent For Service)
(617) 526-6670
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Registered Price per Share Aggregate Offering Price Registration Fee
- ---------------- ---------------- ------------------------- ------------------------ ----------------
Common Stock, $.0025
par value 1,000,000 shares $2.25(1) $2,250,000(1) $562.50
(1) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices as reported by Nasdaq on June
15, 2001 in accordance with Securities Act Rule 457(c) and (h).
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1994 Equity Incentive Plan of Applix, Inc., a
Massachusetts corporation (the "Registrant"), pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (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 following documents, which are filed with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000 as filed originally with the Commission on April 2,
2001, as amended by the Company's Annual Report on Form 10-K/A filed with the
Commission on June 15, 2001.
(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 Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31, 2001 as filed with the
Commission on May 14, 2001.
(ii) The Company's Report on Form 8-K filed with the
Commission on April 13, 2001.
(c) Registration Statement on Form 8-A as filed with the
Commission on October 28, 1994.
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 shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the 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.
Section 13(b)(1 1/2) of Chapter 156B 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 loan to an
insider or obtained an improper personal benefit. The Registrant has included
such a provision in its articles of organization.
Section 67 of Chapter 156B of the Massachusetts General Laws ("Section
67") provides that a corporation may indemnify its directors and officers to the
extent specified in or authorized by: (i) the articles of organization,
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(ii) a by-law adopted by the stockholders, or (iii) a vote adopted by the
holders of a majority of the shares of stock entitled to vote on the election of
directors. In all instances, the extent to which a corporation provides
indemnification to its directors and officers under Section 67 is optional.
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.
Under the Registrant's articles of organization, in the event of a
determination by the Registrant that the director or officer did not meet the
applicable standard of conduct required for indemnification, or if the
Registrant fails to make an indemnification payment within 60 days after such
payment is claimed by such person, such person is permitted to petition a court
to make an independent determination as to whether such person is entitled to
indemnification. The Registrant's articles of organization provide that as a
condition precedent to the right of indemnification, the director or officer
must give the Registrant notice of the action for which indemnity is sought and
the Registrant has the right to participate in such action or assume the defense
thereof.
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 Registrant hereby undertakes:
(a) 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 therefor)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the
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foregoing, any increase or decrease in
volume of securities offered (if the total
dollar value of securities offered would not
exceed that which was registered) and any
deviation from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume
and price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
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 (i) and (ii) do not
apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and 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.
(b) 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.
(c) 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.
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 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.
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 21 day of June 2001.
APPLIX, INC.
By: /s/ Alan Goldwworthy
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Alan Goldsworthy
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Applix, Inc. hereby
severally constitute and appoint Edward Terino 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
amendments to said Registration Statement and generally to do all such things in
our name and 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.
WITNESS our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of June 21, 2001.
SIGNATURE TITLE
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/s/ Alan Goldsworthy President, Chief Executive Officer (Principal
- ------------------------------------ Executive Officer) and Director
Alan Goldsworthy
/s/ Edward Terino Senior Vice President, Finance,
- ------------------------------------ Chief Financial Officer and Treasurer (Principal
Edward Terino Financial Officer)
/s/ Jitendra S. Saxena
- ------------------------------------ Director
Jitendra S. Saxena
/s/ Alain J. Hanover
- ------------------------------------ Director
Alain J. Hanover
/s/ David C. Mahoney
- ------------------------------------ Director
David C. Mahoney
/s/ Peter Gyenes
- ------------------------------------ Director
Peter Gyenes
- ------------------------------------ Director
John D. Loewenberg
/s/ Charles F. Kane
- ------------------------------------ Director
Charles F. Kane
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EXHIBIT INDEX
Exhibit
Number
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4.1(1) Restated Articles of Organization.
4.2 (2) By-Laws.
4.3 (3) Specimen Certificate of Common Stock of the Registrant.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included in the signature pages of
this Registration Statement).
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(1) Incorporated herein by reference to Exhibit 3.3 to the Registrant's
Registration Statement on Form S-1 (File No. 33-85688).
(2) Incorporated herein by reference to Exhibit 3.4 to the Registrant's
Registration Statement on Form S-1 (File No. 33-85688).
(3) Incorporated herein by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-1 (File No. 33-85688).