As filed with the Securities and Exchange Commission July __, 1998
Registration No. 33-__________________
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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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FOURTH SHIFT CORPORATION
(Exact name of issuer as specified in its charter)
Minnesota 41-1437794
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7900 International Drive
Minneapolis, Minnesota 55425
(Address of Principal Executive Offices) (Zip Code)
FOURTH SHIFT CORPORATION 1994 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
DAVID G. LATZKE Copy to:
Vice President and Chief Financial Officer Thomas Martin
FOURTH SHIFT Corporation Dorsey & Whitney LLP
7900 International Drive 220 South Sixth Street
Minneapolis, Minnesota 55425 Minneapolis, Minnesota 55402
(Name and address of agent for service) (612) 340-8706
(612) 851-1500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
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Common Stock
$.01 par value 500,000 $3.53 $1,765,625 $521
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(1) The number of shares being registered represents the number of shares of
Common Stock, in addition to 400,000 shares previously registered, which may be
issued pursuant to the FOURTH SHIFT Corporation 1994 Employee Stock Purchase
Plan.
(2) Estimated solely for the purpose of determining the registration fee, based
upon the average of the high and low prices of the Common Stock as quoted on The
Nasdaq National Market on July 16, 1998.
Pursuant to General Instruction E of the General Instructions to the Form S-8,
this Registration Statement incorporates by reference the Registrant's
Registration Statement on Form S-8 filed June 20, 1994 (File No. 33-80480)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by FOURTH SHIFT
Corporation (the "Company") with the Securities and Exchange Commission, are
incorporated by reference in this Registration Statement, as of their respective
dates:
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1997 and the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; and
(b) The description of capital stock contained in any registration
statement or report filed under the Securities Exchange Act of 1934, including
any amendment or report filed for the purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date hereof and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the respective dates of filing of such
documents.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Statutes requires, among other
things, the indemnification of persons made or threatened to be made a party to
a proceeding by reason of acts or omissions performed in their official capacity
as an officer, director, employee or agent of the corporation against judgments,
penalties and fines (including attorneys' fees) if such person is not otherwise
indemnified, acted in good faith, received no improper benefit, believed that
such conduct was in the best interests of the corporation, and, in the case of
criminal proceedings, had no reason to believe the conduct was unlawful. In
addition, Section 302A.521, subd. 3, requires payment by the corporation, upon
written request, or reasonable expenses in advance of final disposition in
certain instances. A decision as to required indemnification is made by a
disinterested majority of the Board of Directors present at a meeting at which a
disinterested quorum is present, or by a designated committee of the Board, by
special legal counsel, by the shareholders or by a court. The bylaws of the
Company provide that the Company shall indemnify such persons, for such
liabilities, in such manner, under such circumstances, and to such extent as
permitted by Section 302A.521, as now enacted or hereafter amended. This
indemnification may include indemnification for liabilities arising under the
Securities Act of 1933.
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Item 8. EXHIBITS.
Exhibit Number Description
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4.1 FOURTH SHIFT CORPORATION 1994 EMPLOYEE STOCK PURCHASE
PLAN, as amended
5 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Arthur Andersen LLP.
24.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5
above).
25 Power of Attorney (included in the signature page to
this Registration Statement).
Item 9. UNDERTAKINGS.
A. POST-EFFECTIVE AMENDMENTS
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 of 1933;
(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 subparagraphs (i) and (ii) above will not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE
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 Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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. CLAIMS FOR INDEMNIFICATION
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 indemnification provisions described
herein, 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 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 of 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 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 Minneapolis, State of Minnesota, on this 21st day of
July, 1998.
FOURTH SHIFT CORPORATION
By: /s/ MARION MELVIN STUCKEY
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Marion Melvin Stuckey
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The officers and directors of FOURTH SHIFT Corporation, whose signatures
appear below, hereby constitute and appoint Marion Melvin Stuckey and David G.
Latzke, and each of them (with full power to each of them to act alone), the
true and lawful attorney-in-fact to sign and execute on behalf of the
undersigned, any amendment or amendments to this Registration Statement of
FOURTH SHIFT Corporation, and each of the undersigned does hereby ratify and
confirm all that said attorneys shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated:
Name Title
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/s/ MARION MELVIN STUCKEY Chairman, Chief Executive July 21, 1998
-------------------------- Officer and Director (PRINCIPAL
Marion Melvin Stuckey EXECUTIVE OFFICER)
/s/ JIMMIE H. CALDWELL President, Chief Operating July 21, 1998
-------------------------- Officer and Director
Jimmie H. Caldwell
/s/ DAVID G. LATZKE Vice President--Finance, Chief July 21, 1998
-------------------------- Financial Officer and Secretary
David G. Latzke (PRINCIPAL FINANCIAL OFFICER)
/s/ MOLLY MONROE Controller (PRINCIPAL July 21, 1998
-------------------------- ACCOUNTING OFFICER)
Molly Monroe
/s/ MICHAEL J. ADAMS Director July 21, 1998
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Michael J. Adams
/s/ STEVE J. LAIR Director July 21, 1998
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Steve J. Lair
/s/ MARK SHEFFERT Director July 21, 1998
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Mark Sheffert
/s/ TONY J. CHRISTIANSON Director July 21, 1998
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Tony J. Christianson
/s/ ROBERT M. PRICE Director July 21, 1998
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Robert M. Price
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EXHIBIT INDEX
Exhibit Number Description Page
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4.1 FOURTH SHIFT CORPORATION 1994 EMPLOYEE STOCK
PURCHASE PLAN, as amended
5 Opinion of Dorsey & Whitney LLP.. . . . . . . . . . . . . .
23.1 Consent of Arthur Andersen LLP. . . . . . . . . . . . . . .
24.2 Consent of Dorsey & Whitney LLP (included in
Exhibit 5 above).
25 Power of Attorney (included in the signature page
to this Registration Statement).
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