AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 14, 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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RAINING DATA CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 94-3046892
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
17500 CARTWRIGHT ROAD
IRVINE, CALIFORNIA 92614
(949) 442-4400
(Address of Principal Executive Offices)
2001 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plan)
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CARLTON H. BAAB
PRESIDENT AND CHIEF EXECUTIVE OFFICER
17500 CARTWRIGHT ROAD
IRVINE, CALIFORNIA 92614
(Name and Address of Agent for Service)
(949) 442-4400
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Steven E. Bochner, Esq.
Matthew Sonsini, Esq.
Wilson Sonsini Goodrich & Rosati, PC
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT TO MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES BE REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED (1) PER UNIT (3) PRICE (3) FEE
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Common Stock, $0.10 par
value per share 1,000,000
shares (2) $3.41 $3,410,000 $814.99
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement includes an indeterminate
number of additional shares which may be offered and issued to prevent
dilution from stock splits, stock dividends or similar transactions as
provided in the above-referenced plan.
(2) This total represents the amount of shares authorized to be issued under the
Registrant's 2001 Employee Stock Purchase Plan.
(3) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, the
proposed maximum offering price per share and the proposed maximum aggregate
offering price have been determined on the basis of $3.41 per share (8% of
the average of the high and low prices reported on the Nasdaq SmallCap
Market on December 10, 2001). Pursuant to the 2001 Employee Stock Purchase
Plan, shares are sold at 85% of the lesser of the fair market value of such
shares on the first day of each offering period or the last day of each
offering period.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I of
Form S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need 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. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Commission are
incorporated by reference herein:
a. The Registrant's Annual Report on Form 10-KSB for the fiscal year
ended March 31, 2001 which includes audited financial statements for the
Registrant's latest fiscal year.
b. The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 2001 and September 30, 2001, and all other reports filed
by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year
covered by the audited financial statements described in (a) above.
c. The description of the Registrant's Common Stock contained in the
Registrant's Statement on Form 8-A, filed December 22, 1987 under the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement,
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
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 by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities that they may incur in such capacities, including liabilities under
the Securities Act.
The Registrant's Restated Certificate of Incorporation, as amended,
provides that no director of the Registrant will be held personally liable for
monetary damages for breach of the fiduciary duty as a director, provided that a
director may be liable (a) for any breach of the director's duty of loyalty to
the corporation or its stockholders; (b) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law; (c) for
any violation of Section 174 of the Delaware General Corporation Law; or (d) for
any transaction from which the director derived an improper personal benefit.
The Registrant's Bylaws, as amended, provide for mandatory indemnification of
its directors and executive officers, to the fullest extent permissible under
Delaware law.
In addition, the Registrant has a policy of entering into
indemnification agreements with its directors and certain of its executive
officers that require the Registrant to indemnify such persons against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement (if
such settlement is approved in advance by the Registrant, which approval shall
not be unreasonably withheld) actually and reasonably incurred in connection
with any proceeding, whether actual or threatened, pending or completed action,
suit, proceeding or any alternative dispute resolution mechanism, whether civil,
criminal, administrative or investigative to which any such person may be made a
party by reason of the fact that such person is or was a director or officer of
the Registrant, provided such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
The Registrant has obtained a policy of directors' and officers'
liability insurance that insures the Registrant's directors and officers against
the cost of defense, settlement or payment of a judgement under certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation dated September 17, 1997
as amended and corrected of the Registrant (included as Exhibit
3.1 to the Registrant's Form 8-K filed with the Commission on
June 16, 1998 and incorporated herein by reference).
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant dated February 9, 1999 (included as Exhibit 3.2 to the
Registrant's Form 10-KSB filed with the Commission on July 7,
1999 and incorporated herein by reference).
4.3 Certificate of Designation dated March 31, 1999 as corrected
(included as Exhibit 3.1 to the Registrant's Form 8-K filed with
the Commission on April 5, 1999 and incorporated herein by
reference).
4.4 Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant dated November 29, 2000
(included as Exhibit 3.1 to the Registrant's Form 10-QSB filed
with the Commission on February 14, 2001 and incorporated herein
by reference).
4.5 Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant dated December 12, 2001.
4.6 Amended and Restated Bylaws dated December 12, 2001.
4.7 2001 Employee Stock Purchase Plan (included as Appendix B to
Registrant's Schedule 14A filed with the Commission on November
13, 2001 and incorporated herein by reference).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, PC (contained in
Exhibit 5.1).
23.2 Consent of Independent Certified Public Accountants.
24.1 Power of Attorney (see Signature Page).
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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 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 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this 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 the
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 Registrant,
Raining Data Corporation, 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 Irvine, State of California, on
December 14, 2001.
RAINING DATA CORPORATION
By: /s/ CARLTON H. BAAB
---------------------------------
Carlton H. Baab
President and Chief Executive
Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Know all persons by these presents, that each person whose signature
appears below hereby constitutes and appoints Carlton H. Baab and Scott K.
Anderson, Jr., and each one of them, acting individually and without the other,
as his attorney-in-fact, each with full power of substitution, for him in any
and all capacities, to sign any and all amendments to this report on Form S-8,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, thereby ratifying and
confirming all that each of said attorneys-in-fact, or his or her substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, the
following persons in the capacities and on the dates indicated have signed this
report on Form S-8, below on behalf of the registrant.
SIGNATURES TITLE: DATE:
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/s/ CARLTON H. BAAB President, Chief Executive December 14, 2001
---------------------------- Officer and Director ------------------------------
Carlton H. Baab (Principal Executive Officer) (Date)
/s/ SCOTT K. ANDERSON, JR. Vice President - Finance, December 14, 2001
---------------------------- Treasurer and Secretary ------------------------------
Scott K. Anderson, Jr. (Principal Financial and (Date)
Accounting Officer)
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/s/ GEOFFREY P. WAGNER Director and December 14, 2001
----------------------------- Chairman of the Board -----------------------------
Geoffrey P. Wagner (Date)
Director
----------------------------- -----------------------------
Gerald F. Chew (Date)
Director
----------------------------- -----------------------------
Douglas G. Marshall (Date)
/s/ BRYCE J. BURNS Director December 14, 2001
----------------------------- -----------------------------
Bryce J. Burns (Date)
/s/ BRYAN SPARKS Director December 14, 2001
----------------------------- -----------------------------
Bryan Sparks (Date)
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENT
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4.1 Restated Certificate of Incorporation dated September 17, 1997 as
amended and corrected of the Registrant (included as Exhibit 3.1
to the Registrant's Form 8-K filed with the Commission on
June 16, 1998 and incorporated herein by reference).
4.2 Certificate of Amendment of Certificate of Incorporation of the
Registrant dated February 9, 1999 (included as Exhibit 3.2 to the
Registrant's Form 10-KSB filed with the Commission on July 7,
1999 and incorporated herein by reference).
4.3 Certificate of Designation dated March 31, 1999 as corrected
(included as Exhibit 3.1 to the Registrant's Form 8-K filed with
the Commission on April 5, 1999 and incorporated herein by
reference).
4.4 Certificate of Amendment of Restated Certificate of Incorporation
of the Registrant dated November 29, 2000 (included as Exhibit
3.1 to the Registrant's Form 10-QSB filed with the Commission on
February 14, 2001 and incorporated herein by reference).
4.5 Certificate of Amendment of Restated Certificate of Incorporation
of the Registrant dated December 12, 2001.
4.6 Amended and Restated Bylaws dated December 12, 2001.
4.7 2001 Employee Stock Purchase Plan (included as Appendix B to
Registrant's Schedule 14A filed with the Commission on November
13, 2001, and incorporated herein by reference).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, PC (contained in
Exhibit 5.1).
23.2 Consent of Independent Certified Public Accountants.
24.1 Power of Attorney (see Signature Page).
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