As filed with the Securities and Exchange Commission on July 25, 2002
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.)
289 TURNPIKE ROAD, WESTBOROUGH, MASSACHUSETTS 01581
(Address of Principal Executive Offices) (Zip Code)
2000 DIRECTOR STOCK OPTION 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)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share Price Registration Fee
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Common Stock,
$0.0025 par value 150,000 shares $1.38(2) $207,000.00(2) $19.05
(including the
associated
Preferred Stock
Purchase Rights)
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(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 offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) 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 National Market on July
23, 2002.
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 2000 Director Stock Option 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 2000 Director Stock Option 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 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, 2001 as filed with the Commission on April 1, 2002.
(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, 2002 as filed with the Commission on
May 15, 2002.
(c) Registration Statements on Forms 8-A as filed with the Commission
on October 28, 1994 and September 20, 2000.
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. 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
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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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 Hale
and Dorr LLP, serves as Clerk to the Registrant.
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, (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.
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ITEM 9. UNDERTAKINGS.
1. The undersigned 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 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 and 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 of 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 Westborough, Massachusetts, on this 17th day of July, 2002.
APPLIX, INC.
By: /s/ Alan Goldsworthy
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Alan Goldsworthy
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Applix, Inc. hereby severally
constitute and appoint Walt Hilger 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 on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Alan Goldsworthy President and Chief Executive July 17, 2002
- --------------------------- Officer (Principal Executive
Alan Goldsworthy Officer)
/s/ Walt Hilger Chief Financial Officer and July 17, 2002
- --------------------------- Treasurer (Principal
Walt Hilger Financial and Accounting
Officer)
/s/ Alain J. Hanover Director July 23, 2002
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Alain J. Hanover
/s/ David C. Mahoney Director July 17, 2002
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David C. Mahoney
/s/ Peter Gyenes Director July 17, 2002
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Peter Gyenes
/s/ Charles F. Kane Director July 17, 2002
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Charles F. Kane
/s/ John D. Loewenberg Director July 17, 2002
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John D. Loewenberg
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EXHIBIT INDEX
EXHIBIT
NUMBER
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4.1(1) Restated Articles of Organization of the Registrant.
4.2 (2) By-Laws of the Registrant.
4.3(3) Form of Rights Agreement, dated as of September 18, 2000, between
the Company and American Stock Transfer & 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.
5.1 Opinion of Hale and Dorr LLP, counsel to the Registrant.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
24.1 Power of Attorney (included on the signature pages of this
registration statement).
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(1) Previously filed with the Securities and Exchange Commission as Exhibit 3.3
to the Registrant's Registration Statement on Form S-1 (File No. 33-85688)
and incorporated herein by reference.
(2) Previously filed with the Securities and Exchange Commission as Exhibit 3.4
to the Registrant's Registration Statement on Form S-1 (File No. 33-85688)
and incorporated herein by reference.
(3) Previously filed with the Securities and Exchange Commission as Exhibit 1
to the Registrant's Registration Statement on Form 8-A, dated September 20,
2000 (File No. 000-25040) and incorporated herein by reference.
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