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As filed with the Securities and Exchange Commission on May 24, 1999
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EXPERT SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 65-0359860
(State of Incorporation) (I.R.S. Employer Identification Number)
802 DOUGLAS ROAD
SIXTH FLOOR
CORAL GABLES, FL 33134
(305) 567-9990
(Address, including zip code, of Principal Executive Offices)
EXPERT SOFTWARE, INC. 1997 STOCK OPTION PLAN FOR OFFICERS AND EMPLOYEES
(Full Title of the Plan)
KENNETH P. CURRIER
CHIEF EXECUTIVE OFFICER
EXPERT SOFTWARE, INC.
802 DOUGLAS ROAD
SIXTH FLOOR
CORAL GABLES, FL 33134
(305) 567-9990
(Name, Address, and Telephone Number, Including Area Code, of Agent For Service)
With copies to:
John J. Egan III, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Registration Fee
Share Price
- -------------------------- ------------- ------------------ ----------------- ----------------
Common Stock, par 351,000 $1.32 (2) $ 463,320 $128.80
value $.01 per share
649,000 $2.4531(3) $1,592,061.90 $442.59
Total 1,000,000 -------- $2,055,381.90 $575.00
========================== ========= ======== ============= =======
(1) Plus such additional number of shares as may be required pursuant to the
Registrant's 1997 Stock Option Plan for Officers and Employees in the
event of a stock dividend, reverse stock split, split-up,
recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
determining the amount of the registration fee and is based on the price
at which outstanding stock options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act solely for purposes of determining the registration fee
and is based on the average of the high and low sales prices of the
common stock of Expert Software, Inc., par value $.01 per share (the
"Common Stock"), as reported on the NASDAQ National Market on May 19,
1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Expert Software, Inc. (the "Company")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference as of their respective dates:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999;
(c) the Company's Current Report on Form 8-K filed on April 29,
1999; and
(d) the description of the Company's Common Stock contained in
its registration statement on Form 8-A, filed with the
Commission on February 28, 1995, as amended, under Section
12 of the Exchange Act and any amendments or reports filed
for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by
the Company 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 hereunder 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 a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
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.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares to be offered hereby will be passed upon
for the Company by Goodwin, Procter & Hoar LLP, Boston, Massachusetts. John J.
Egan III, whose professional corporation is a partner in Goodwin, Procter & Hoar
LLP, is the beneficial owner of 1,000 shares of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law, as amended
(the "DGCL"), the Company has the power to indemnify directors and officers
under certain prescribed circumstances and subject to certain limitations
against certain costs and expenses, including attorneys' fees actually and
reasonably incurred in connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which any of them is a
party by reason of his or her being a director or officer of the Company if it
is determined that he or she acted in accordance with the applicable standard of
conduct set forth in such statutory provisions.
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Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit.
Article VII of the Company's Restated Certificate of Incorporation
states that:
A Director of the Company shall not be personally liable to the
Company or its stockholders for monetary damages for breach of
fiduciary duty as a Director, except for liability (i) for any breach
of the Director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the
Director derived an improper personal benefit. If the DGCL is amended
after the effective date of this Restated Certificate of Incorporation
to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a Director of
the Company shall be eliminated or limited to the fullest extent
permitted by the DGCL, as so amended.
Any repeal or modification of this Article VII by either of (i) the
stockholders of the Company, or (ii) an amendment to the DGCL, shall
not adversely affect any right or protection existing at the time of
such repeal or modification with respect to any acts or omissions
occurring before such repeal or modification of a person serving as a
Director at the time of such repeal or modification.
Article V of the Company's Amended and Restated By-laws further states
that:
1. Definitions. For purposes of this Article: (a) "Officer" means any
person who serves or has served as a Director or Officer of the
Company or in any other office filled by election or appointment by
the stockholders or the Board of Directors of the Company and any
heirs, executors, administrators or personal representatives of such
person; (b) "Non-Officer Employee" means any person who serves or has
served as an employee of the Company, but who is not or was not an
Officer, and any heirs, executors, administrators or personal
representatives of such person; (c) "Proceeding" means any threatened,
pending, or completed action, suit or proceeding (or part thereof),
whether civil, criminal, administrative, arbitrative or investigative,
any appeal of such an action, suit or proceeding, and any inquiry or
investigation which could lead to such an action, suit, or proceeding;
and (d) "Expenses" means any liability fixed by a judgment, order,
decree or award in a Proceeding, any amount reasonably paid in
settlement of a Proceeding and any professional fees and other
expenses and disbursements reasonably incurred in a Proceeding or in
settlement of a Proceeding, including fines, taxes and penalties
relating thereto.
2. Officers. Except as provided in Section 4 of this Article V, each
Officer of the Company shall be indemnified and held harmless by the
Company to the fullest extent authorized by the General Corporation
Law of the State of Delaware, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to provide
prior to such amendment) against any and all Expenses incurred by such
Officer in connection with any Proceeding in which such Officer is
involved as a result of serving or having served (a) as an Officer or
employee of the Company, (b) as a director, officer or employee of any
subsidiary of the Company, or (c) in any capacity with any other
corporation, organization, partnership, joint venture, trust or other
entity at the written request or direction of the Company, including
service with respect to employee or other benefit plans, and shall
continue as to an Officer after he or she has ceased to be an Officer
and shall inure to the benefit of his or her heirs, executors,
administrators and personal representatives; provided, however, that
the Company shall indemnify any such Officer seeking indemnification
in connection with a Proceeding initiated by such Officer only if such
Proceeding was authorized by the Board of Directors of the Company.
3. Non-Officer Employees. Except as provided in Section 4 of this
Article V, each Non-Officer Employee of the Company may, in the
discretion of the Board of Directors, be indemnified by the Company to
the fullest extent authorized by the General Corporation Law of the
State of Delaware, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification
rights than said law permitted the Company to provide prior to such
amendment) against any or all Expenses incurred by such Non-Officer
Employee in connection with any Proceeding in which such Non-Officer
Employee is involved as a result of serving or having served (a) as a
Non-Officer Employee of the Company, (b) as a director,
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officer or employee of any subsidiary of the Company, or (c) in any
capacity with any other corporation, organization, partnership, joint
venture, trust or other entity at the request or direction of the
Company, including service with respect to employee or other benefit
plans, and shall continue as to a Non-Officer Employee after he or she
has ceased to be a Non-Officer Employee and shall inure to the benefit
of his or her heirs, personal representatives, executors and
administrators; provided, however, that the Company may indemnify any
such Non-Officer Employee seeking indemnification in connection with a
Proceeding initiated by such Non-Officer Employee only if such
Proceeding was authorized by the Board of Directors of the Company.
4. Good Faith. No indemnification shall be provided pursuant to this
Article V to an Officer or to a Non-Officer Employee with respect to a
matter as to which such person shall have been finally adjudicated in
any Proceeding not to have acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best
interests of the Company, and, with respect to any criminal
Proceeding, had no reasonable cause to believe his or her conduct was
unlawful. In the event that a Proceeding is compromised or settled so
as to impose any liability or obligation upon an Officer or
Non-Officer Employee, no indemnification shall be provided pursuant to
this Article V to said Officer or Non-Officer Employee with respect to
a matter if there be a determination that with respect to such matter
such person did not act in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of
the Company, and, with respect to any criminal Proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
determination shall be made by (i) a majority vote of those Directors
who are not involved in such Proceeding (the "Disinterested
Directors"); (ii) by stockholders; or (iii) if directed by a majority
of Disinterested Directors, by independent legal counsel in a written
opinion. However, if more than half of the Directors are not
Disinterested Directors, the determination shall be made by (i) a
majority vote of a committee of one or more disinterested Director(s)
chosen by the Disinterested Director(s) at a regular or special
meeting; (ii) by stockholders; or (iii) by independent legal counsel
in a written opinion.
5. Prior to Final Disposition. Unless otherwise determined by (i) the
Board of Directors, (ii) if more than half of the Directors are
involved in a Proceeding by a majority vote of a committee of one or
more Disinterested Director(s) chosen in accordance with the
procedures specified in Section 4 of this Article or (iii) if directed
by the Board of Directors, by independent legal counsel in a written
opinion, any indemnification extended to an Officer or Non-Officer
Employee pursuant to this Article V shall include payment by the
Company of Expenses incurred in defending a Proceeding in advance of
the final disposition of such Proceeding upon receipt of an
undertaking by such Officer or Non-Officer Employee seeking
indemnification to repay such payment if such Officer or Non-Officer
Employee shall be adjudicated or determined not to be entitled to
indemnification under this Article V.
6. Contractual Nature of Rights. The foregoing provisions of this
Article V shall be deemed to be a contract between the Company and
each Officer and Non-Officer Employee who serves in such capacity at
any time while this Article V is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then
existing with respect to any state of facts then or theretofore
existing or any Proceeding theretofore or thereafter brought based in
whole or in part upon any such state of facts. If a claim for
indemnification or advancement of expenses hereunder by an Officer or
Non-Officer Employee is not paid in full by the Company within 60 days
after a written claim for indemnification or documentation of expenses
has been received by the Company, such Officer or Non-Officer Employee
may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim, and if successful in whole or in part,
such Officer or Non-Officer Employee shall also be entitled to be paid
the expenses of prosecuting such claim. The failure of the Company
(including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to make a determination
concerning the permissibility of such indemnification or advancement
of expenses under this Article V shall not be a defense to the action
and shall not create a presumption that such indemnification or
advancement is not permissible.
7. Non-Exclusivity of Rights. The provisions in respect of
indemnification and the payment of expenses incurred in defending a
Proceeding in advance of its final disposition set forth in this
Article V shall not be exclusive of any right which any person may
have or hereafter acquire under any statute, provision of the
Certificate or these By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
8. Insurance. The Company may maintain insurance, at its expense, to
protect itself and any Officer or Non-Officer Employee against any
liability of any character asserted against or incurred by the Company
or any such Officer or Non-Officer Employee, or arising out of any
such status, whether or not the Company would have the power to
indemnify such person against such liability under the General
Corporation Law of the State of Delaware or the provisions of this
Article V.
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The Company carries directors' and officers' liability insurance
covering its directors and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Securities and Exchange
Commission has expressed its opinion that such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement:
4.1 Restated Certificate of Incorporation of the Company (1)
4.2 Amended and Restated By-Laws of the Company (1)
4.3 Shareholder Rights Agreement between the Company and the
First National Bank of Boston dated November 9, 1995 (2)
4.4 Amendment No. 1 to Shareholder Rights Agreement, dated as of
March 3, 1999, by and between the Company and BankBoston,
N.A. (as successor to the First National Bank of Boston) (3)
4.5 Amendment No. 2 to Shareholder Rights Agreement, dated as of
April 19, 1999, by and between the Company and BankBoston,
N.A. (as successor to the First National Bank of Boston) (4)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
securities being registered *
23.1 Consent of Grant Thornton LLP *
23.2 Consent of Arthur Andersen LLP *
23.3 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
99.1 Expert Software, Inc. 1997 Stock Option Plan for Officers
and Employees *
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* Filed herewith.
(1) Incorporated by reference to the designated exhibit of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(2) Incorporated by reference to Exhibit 10.12 of the Company's
Form 8-K (filed November 12, 1995).
(3) Incorporated by reference to Exhibit 4.1 of the Company's
Form 8-K (filed March 9, 1999).
(4) Incorporated by reference to Exhibit 4.1 of the Company's
Form 8-K (filed April 29, 1999);
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:
(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. Notwithstanding the
foregoing, any increase or decease 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; and
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(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 (a)(1)(i) and (a)(1)(ii) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the undersigned 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 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 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.
(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 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 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
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 Coral Gables, state of Florida, on this 24th day of
May, 1999.
EXPERT SOFTWARE, INC.
By: /s/ KENNETH P. CURRIER
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Kenneth P. Currier
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), each person whose signature appears below does hereby make, constitute
and appoint Kenneth P. Currier and Susan A. Currier and each of them singly,
with full power to act without the other, his true and lawful attorney-in-fact
and agent, in his name, place and stead to execute on his behalf, as a director
and/or officer of Expert Software, Inc. (the "Company"), the Registration
Statement of the Company on Form S-8 (the "Registration Statement") for the
registration of shares of the Company's common stock, par value $.01 per share,
in connection with the Expert Software, Inc. 1997 Stock Option Plan for Officers
and Employees, and any and all amendments (including post-effective amendments
and a further registration statement conforming to Rule 462(b)) of the
Securities Act) to the Registration Statement, and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (the "Commission") and any and all other
instruments which either of said attorneys-in-fact and agents deem necessary or
advisable to enable the Company to comply with the Securities Act, the rules,
regulations and requirements of the Commission in respect thereof, and the
securities or Blue Sky laws of any State or other governmental subdivision,
giving and granting to each of said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing whatsoever necessary or
appropriate to be done in and about the premises as fully to all intents as he
might or could do if personally present at the doing thereof, with full power of
substitution and resubstitution, hereby ratifying and confirming all that his
said attorneys-in-fact and agents or substitutes may or shall lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title Date
/s/ KENNETH P. CURRIER Director, Chief Executive May 24, 1999
- ----------------------- Officer, Secretary (Principal
Kenneth P. Currier Executive Officer, Acting
Principal Financial Officer
and Acting Principal Accounting
Officer)
/s/ SUSAN A. CURRIER Director, President May 24, 1999
- -----------------------
Susan A. Currier
/s/ DOUGLAS G. CARLSTON Director May 24, 1999
- -----------------------
Douglas G. Carlston
/s/ A. BRUCE JOHNSTON Director May 24, 1999
- ----------------------
A. Bruce Johnston
/s/ WILLIAM H. LANE III Director May 24, 1999
- -----------------------
William H. Lane III
/s/ MICHAEL S. MURRAY Director May 24, 1999
- -----------------------
Michael S. Murray
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EXHIBIT INDEX
Exhibit No. Description Page
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4.1 Restated Articles of Incorporation of the Company (1)
4.2 Amended and Restated By-Laws of the Company (1)
4.3 Shareholder Rights Agreement between the Company and the First
National Bank of Boston dated November 9, 1995 (2)
4.4 Amendment No. 1 to Shareholder Rights Agreement, dated as of
March 3, 1999, by and between the Company and BankBoston, N.A. (as
successor to the First National Bank of Boston) (3)
4.5 Amendment No. 2 to Shareholder Rights Agreement, dated as of
April 19, 1999, by and between the Company and BankBoston, N.A.
(as successor to the First National Bank of Boston) (4)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
securities being registered * 10
23.1 Consent of Grant Thornton LLP * 12
23.2 Consent of Arthur Andersen LLP * 13
23.3 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto)
24.1 Power of Attorney (included on the signature page of this
Registration Statement)
99.1 Expert Software, Inc. 1997 Stock Option Plan for Officers and
Employees * 14
* Filed herewith.
(1) Incorporated by reference to the designated exhibit of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
(2) Incorporated by reference to Exhibit 10.12 of the Company's
Form 8-K (filed November 12, 1995).
(3) Incorporated by reference to Exhibit 4.1 of the Company's
Form 8-K (filed March 9, 1999).
(4) Incorporated by reference to Exhibit 4.1 of the Company's
Form 8-K (filed April 29, 1999);