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As filed with the Securities and Exchange Commission on August 31, 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
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PERSISTENCE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3138935
(State of incorporation) (I.R.S. Employer Identification No.)
1720 SOUTH AMPHLETT BLVD., THIRD FLOOR
SAN MATEO, CALIFORNIA 94402
(Address of principal executive offices)
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1997 STOCK PLAN
(Full title of the Plan)
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CHRISTOPHER T. KEENE
CHIEF EXECUTIVE OFFICER
PERSISTENCE SOFTWARE, INC.
1720 SOUTH AMPHLETT BLVD., THIRD FLOOR
SAN MATEO, CALIFORNIA 94402
(650) 372-3600
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Laurel Finch
Venture Law Group
A Professional Corporation
2775 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
Page 1 of 9 Pages
Exhibit Index on Page 9
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
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1997 STOCK PLAN
Common Stock,
$0.001 par value.................. 725,000 Shares $0.375(2) $271,875.00 $67.97
TOTAL 725,000 Shares $271,875.00 $67.97
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of
1933 (the "Securities Act") solely for the purpose of calculating the
registration fee. The computation with respect to unissued options is
based upon the average of the high and low sale prices of the Common
Stock as reported on The Nasdaq National Market on August 28, 2001.
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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 hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2001.
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on April
23, 1999, including any amendment or report filed for the purpose of updating
such description.
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 securities offered hereby 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
part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of the date of this Registration Statement, attorneys of Venture Law
Group and an investment partnership controlled by Venture Law Group beneficially
own an aggregate of 1,425 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its stockholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
Exhibit
Number
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5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation
(included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Powers of Attorney (see p. 6).
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Item 9. UNDERTAKINGS.
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 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.
(2) that, for purposes 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 herein, 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.
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
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 herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as the 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 a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already 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 Securities Act and will be
governed by the final adjudication of such issue.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Persistence Software, Inc., a corporation organized and existing
under the laws of the State of Delaware, 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 San Mateo, State of
California, on this August 30, 2001.
PERSISTENCE SOFTWARE, INC.
By: /s/ CHRISTOPHER T. KEENE
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Christopher T. Keene
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Christopher T. Keene and Christine
Russell, jointly and severally, his or her attorneys-in-fact and agents, each
with the power of substitution and resubstitution, for him or her and in his or
her name, place or stead, in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8, and to file such amendments, together
with exhibits and other documents in connection therewith, with the Securities
and Exchange Commission, granting to each attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully as he or she might or
could do in person, and ratifying and confirming all that the attorneys-in-fact
and agents, or his or her substitute or substitutes, may do or cause to be done
by virtue hereof.
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.
Signature Title Date
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/s/ CHRISTOPHER T. KEENE Chief Executive Officer (Principal August 30, 2001
- ----------------------------- Executive Officer) and Director
Christopher T. Keene
/s/ CHRISTINE RUSSELL Chief Financial Officer (Principal August 30, 2001
- ----------------------------- Financial and Accounting
Christine Russell Officer)
/s/ GREGORY ENNIS Director August 30, 2001
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Gregory Ennis
/s/ ALAN KING Director August 30, 2001
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Alan King
/s/ JOSEPH P. ROEBUCK Director August 30, 2001
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Joseph P. Roebuck
/s/ SANJAY VASWANI Director August 30, 2001
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Sanjay Vaswani
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INDEX TO EXHIBITS
Exhibit
Number
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5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation.
(included in Exhibit 5.1).
23.2 Independent Auditors' Consent.
24.1 Powers of Attorney (see page 6).