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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 20, 1999
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
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ESHARE TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1378534
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5051 PEACHTREE CORNERS CIRCLE
NORCROSS, GEORGIA 30092-2500
(770) 239-4000
(Address of registrant's principal executive offices,
including zip code and telephone number,
including area code)
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STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
(Full title of the Plans)
ALEKSANDER SZLAM COPY TO:
CHIEF EXECUTIVE OFFICER JOHN FRANKLIN SMITH, ESQ.
ESHARE TECHNOLOGIES, INC. LARRY W. SHACKELFORD, ESQ.
5051 PEACHTREE CORNERS CIRCLE MORRIS, MANNING & MARTIN, L.L.P.
NORCROSS, GEORGIA 30092-2500 1600 ATLANTA FINANCIAL CENTER
(770) 239-4000 3343 PEACHTREE ROAD, N.E.
ATLANTA, GEORGIA 30326
(404) 233-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of Registration Fee
Title of Securities to be Registered Registered (1) Share (2)(3) Price (2)(3) (3)
- ------------------------------------------ -------------- ------------------ ------------------ --------------------------
Common Stock, no par value per share 760,906 shares $2.313378 $1,760,263.42 $490.00
========================================== ============== ================== ================== ==========================
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(1) Represents 760,906 shares of Common Stock reserved for issuance
by Registrant under the Stock Option and Restricted Stock
Purchase Plan dated October 23, 1996 (the "Plan").
(2) Estimated solely for the purpose of calculating the registration
fee.
(3) Calculated pursuant to Rule 457(c) and (h) of the Securities Act
of 1933, as amended. Accordingly, the price per share of the
Common Stock offered hereunder pursuant to the Plan is based on
760,906 shares of Common Stock subject to options already granted
at a weighted average exercise price of $2.313378 per share.
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Exhibit Index appears on Page 7 of 8 sequentially numbered pages.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees of eShare Technologies Inc. (the "Registrant") as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the instructions of Part I of Form S-8,
such documents will not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998, filed pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999 and June 30, 1999.
(c) The Registrant's Current Reports on Form 8-K dated June 21, 1999
and September 16, 1999.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated May 22, 1997.
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 indicating that all securities offered under the Plans
have been sold or deregistering all securities then remaining unsold thereunder,
shall be deemed to be incorporated herein by reference and shall be deemed to be
a part hereof from the date of filing thereof.
Any statement contained in any document incorporated or deemed to be
incorporated by reference into the Prospectus shall be deemed to be modified or
superseded for purposes thereof to the extent that a statement contained therein
or in any other subsequently filed document that is also incorporated or deemed
to be incorporated therein by reference modifies or supersedes such statement.
Any such statement so modified or superseded shall now be deemed, accepted so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Registrant's Common Stock is incorporated by
reference under Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock offered
hereby were passed upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia.
Members of Morris, Manning & Martin, L.L.P. hold an aggregate of 1,100 shares
of Common Stock.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Bylaws provide that the liability
of the Registrant's officers and directors for monetary damages shall be limited
to the fullest extent permissible under Georgia law. This limitation of
liability does not affect the availability of injunctive relief or other
equitable remedies.
The Registrant's Amended and Restated Bylaws provide that the Company
shall indemnify each of its directors and officers to the extent that he or she
is or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that such person is or was
a director, officer, employee or agent of the Company, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with such action, suit or proceeding; provided, however, that no
indemnification shall be made for (i) any appropriation, in violation of his
duties, of any business opportunity of the Registrant, (ii) acts or omissions
which involve intentional misconduct or a knowing violation of law, (iii) any
liability under Section 14-2-832 of the Georgia Business Corporations Code,
which relates to unlawful payments of dividends and unlawful stock repurchases
and redemptions, or (iv) any transaction from which he or she derived an
improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit No. Description
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4.1 Amended and Restated Articles of Incorporation of Registrant
(incorporated by reference to Exhibit 3.3 to Amendment No. 1 to
the Registrant's Registration Statement on Form S-1, File No. 333-22855,
filed March 28, 1997)
4.2 Amended and Restated Bylaws of Registrant (incorporated
by reference to Exhibit 3.4 to Amendment No. 1 to the Registrant's
Registration Statement on Form S-1, File No. 333-22855, filed March 28, 1997)
5.1 Opinion of Morris, Manning & Martin, L.L.P. as to the legality of the
securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Morris, Manning & Martin, L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included on page 6 of this Registration Statement)
99.1 Consolidated Financial Statements of Registrant as of December 31,
1998 and 1997
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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;
(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) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
S-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.
(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 the 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 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 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, the undersigned
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 Norcross, State of Georgia, on this the 20th day of
October, 1999.
ESHARE TECHNOLOGIES, INC.
By: /s/ Aleksander Szlam
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Aleksander Szlam
Chairman of the Board and
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signatures
appears below constitutes and appoints Aleksander Szlam and Dan K. Lowring,
jointly and severally, as 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 a Registration Statement relating
to the registration of shares of common stock on Form S-8 and to sign any and
all amendments (including post effective amendments) to the Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing required or necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute, could 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.
/s/ Aleksander Szlam Chairman of the Board October 20, 1999
- ------------------------------------ and Chief Executive Officer
Aleksander Szlam (Principal Executive Officer)
s/ Dan K. Lowring Vice-President-Administration October 20, 1999
- ----------------------------------- and Chief Financial Officer
Dan K. Lowring (Principal Financial and Accounting
Officer)
/s/ Andrew J. Filipowski Director October 20, 1999
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Andrew J. Filipowski
/s/ Donald L. House Director October 20, 1999
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Donald L. House
/s/ Don W. Hubble Director October 20, 1999
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Don W. Hubble
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EXHIBIT INDEX
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit No. Description Sequential Page Number
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4.1 Amended and Restated Articles of Incorporation
of Registrant (incorporated by reference to
Exhibit 3.3 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1,
File No. 333-22855, filed March 28, 1997) ............................N/A
4.2 Amended and Restated Bylaws of Registrant
(incorporated by reference to Exhibit 3.4 to
Amendment No. 1 to the Registrant's Registration
Statement on Form S-1, File No. 333-22855, filed
March 28, 1997) ............................N/A
5.1 Opinion of Morris, Manning & Martin, L.L.P. as
to the legality of the securities being ..............................8
registered
23.1 Consent of Arthur Andersen LLP ...............................
23.2 Consent of Counsel (included in Exhibit 5.1) ............................N/A
24.1 Power of Attorney (included at Page 6 of this
Registration Statement) ............................N/A
99.1 Consolidated Financial Statements of Registrant
as of December 31, 1998 and 1997 ............................N/A
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