Form S-8

 

As filed with the Securities and Exchange Commission on February 28, 2003

Registration No. 333-______

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

LEGATO SYSTEMS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

(State or other jurisdiction

of incorporation or organization)

  

94-3077394

(IRS Employer

Identification No.)

 

2350 West El Camino Real

Mountain View, CA 94040

(Address of principal executive offices) (Zip Code)

 

LEGATO SYSTEMS, INC. 1995 STOCK OPTION/STOCK ISSUANCE PLAN

(Full title of the Plans)

 

 

DAVID B. WRIGHT

Chairman of the Board and Chief Executive Officer

Legato Systems, Inc.

2350 West El Camino Real

Mountain View, CA 94040

(Name and address of agent for service)

 

(650) 210-7000

(Telephone number, including area code, of agent for service)

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered

  

Amount to be

Registered(1)

     

Proposed Maximum

Offering Price

per Share(2)

  

Proposed Maximum

Aggregate

Offering Price(2)

   

Amount of

Registration Fee

1995 Stock Option/Stock Issuance Plan
Common Stock, $0.0001 par value

  

5,688,475 shares

     

$5.96

  

$33,903,311.00

   

$2,742.78

(1)   This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Legato Systems, Inc. 1995 Stock Option/Stock Issuance Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s Common Stock.
(2)   Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the average of the high and low selling price per share of the Legato Systems, Inc. Common Stock on February 27, 2003, as reported by the Nasdaq National Market.

 

PART II

 

Information Required in the Registration Statement

 

Item 3.    Incorporation of Documents by Reference

 

Legato Systems, Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “SEC”):

 

  (a)   The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002 filed with the SEC on February 28, 2003;

 

  (b)   The Registrant’s Registration Statement No. 0-26130 on Form 8-A filed with the SEC on May 19, 1995 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the “1934 Act”), in which there is described the terms, rights and provisions applicable to the Registrant’s outstanding Common Stock.

 

All reports and definitive proxy or information statements filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 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 into 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 to be 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 subsequently filed document which also is 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

 

Not Applicable.

 

Item 6.    Indemnification of Directors and Officers

 

Section 145 of the Delaware General Corporation Law authorizes a court to award or a corporation’s Board of Directors to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the “1933 Act”). The Registrant’s Bylaws provide for mandatory indemnification of its directors and officers and permissible indemnification of employees and other agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, the Registrant has entered into Indemnification Agreements with each of its directors and officers.

 

Item 7.    Exemption from Registration Claimed

 

Not Applicable.

 

II-1

 

Item 8.    Exhibits

 

Exhibit Number

   

Exhibit

  4     

   

Instrument Defining Rights of Stockholders. Reference is made to Registrant’s Registration Statement No. 0-26130 on Form 8-A, which is incorporated herein by reference pursuant to Item 3(b) of this Registration Statement.

  5     

   

Opinion and consent of Morgan, Lewis & Bockius LLP.

23.1  

   

Consent of PricewaterhouseCoopers LLP, Independent Accountants.

23.2  

   

Consent of Morgan, Lewis & Bockius LLP is contained in Exhibit 5.

24     

   

Power of Attorney. Reference is made to page II-3 of this Registration Statement.

99.1*

   

1995 Stock Option/Stock Issuance Plan.

*   Exhibit 99.1 is incorporated herein by reference to Registrant’s Registration Statement No. 33-92072 on Form S-1, filed with the Commission on May 9, 1995.

 

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 1933 Act, (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall 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 Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference into this Registration Statement; (2) that for the purpose of determining any liability under the 1933 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 and (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 Registrant’s 1995 Stock Option/Stock Issuance Plan.

 

B.    The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference into 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 1933 Act may be permitted to directors, officers or controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 or otherwise, the Registrant has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the 1933 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 1933 Act and will be governed by the final adjudication of such issue.

 

II-2

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Mountain View, State of California on this 28th day of February, 2003.

 

LEGATO SYSTEMS, INC.

By:

  

/s/    DAVID B. WRIGHT

   

David B. Wright

Chairman and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS:

 

That the undersigned officers and directors of Legato Systems, Inc., a Delaware corporation, do hereby constitute and appoint David B. Wright and Andrew Brown, and either of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and either one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and either of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.

 

IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature

   

Title

  

Date

/s/    DAVID B. WRIGHT

David B. Wright

   

Chairman and Chief Executive Officer

(Principal Executive Officer)

  

February 28, 2003

/s/    ANDREW J. BROWN

Andrew J. Brown

   

Executive Vice President and Chief Financial

Officer (Principal Financial Officer)

  

February 28, 2003

 

II-3

Signature

   

Title

  

Date

/s/    CORY J. SINDELAR

Cory J. Sindelar

   

Vice President and Corporate Controller

(Principal Accounting Officer)

  

February 28, 2003

/s/    ERIC A. BENHAMOU

Eric A. Benhamou

   

Director

  

February 28, 2003

/s/    BRENDAN J. DAWSON

Brendan J. Dawson

   

Director

  

February 28, 2003

/s/    KENNETH A. GOLDMAN

Kenneth A. Goldman

   

Director

  

February 28, 2003

/s/    RICHARD A. KAY

Richard A. Kay

   

Director

  

February 28, 2003

/s/    CHRISTOPHER B. PAISLEY

Christopher B. Paisley

   

Director

  

February 28, 2003

/s/    DAVID N. STROHM

David N. Strohm

   

Director

  

February 28, 2003

 

II-4

 

EXHIBIT INDEX

 

Exhibit Number

   

Exhibit

  4     

   

Instruments Defining the Rights of Stockholders. Reference is made to Registrant’s Registration Statement No. 0-26130 on Form 8-A, together with any exhibits thereto, which are incorporated herein by reference pursuant to Item 3(b) to this Registration Statement.

  5     

   

Opinion and consent of Morgan, Lewis & Bockius LLP.

23.1  

   

Consent of PricewaterhouseCoopers LLP, Independent Accountants.

23.2  

   

Consent of Morgan, Lewis & Bockius LLP is contained in Exhibit 5.

24     

   

Power of Attorney. Reference is made to page II-3 of this Registration Statement.

99.1*

   

1995 Stock Option/Stock Issuance Plan.

*   Exhibit 99.1 is incorporated herein by reference to Registrant’s Registration Statement No. 33-92072 on Form S-1, filed with the Commission on May 9, 1995.