<PAGE> 1
As filed with the Securities and Exchange Commission on June 7, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
SOFTWARE 2000, Inc.
(Exact name of registrant as specified in its charter)
Massachusetts 04-2734036
------------- ----------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
25 Communications Way, Hyannis, Massachusetts 02601
---------------------------------------------------
(Address of principal executive offices) (Zip Code)
1984 Incentive Stock Option Plan
1989 Stock Option Plan
1995 Stock Plan
1995 Non-Employee Director Stock Option Plan
(Full title of the plans)
--------------------------
Robert A. Pemberton
Chairman of the Board and Chief Executive Officer
Software 2000, Inc.
25 Communications Way
Hyannis, Massachusetts 02601
(508) 778-2000
(Name, address including zip code and telephone number,
including area code, of agent for service)
--------------------------
Copy to:
William B. Asher, Jr., Esq.
TESTA, HURWITZ & THIBEAULT, LLP
High Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
=====================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- -----------------------------------------------------------------------------------------------------
<C> <C> <C> <C> <C>
1984 INCENTIVE STOCK 1,312,500 shares $ 2.85(1) $ 3,740,625 $ 1,290
OPTION PLAN
Common Stock,
$.01 par value
1989 STOCK OPTION
PLAN
Common Stock,
$.01 par value 2,221,795 shares $ 5.35(1) $11,886,603 $ 4,099
1995 STOCK PLAN
Common Stock,
$.01 par value 3,500,000 shares $16.94(2) $59,290,000 $20,445
1995 NON-EMPLOYEE
DIRECTOR STOCK
OPTION PLAN
Common Stock,
$.01 par value 210,000 shares $16.94(2) $ 3,557,400 $ 1,227
TOTAL: 7,244,295 shares $27,061
-------
=====================================================================================================
<FN>
(1) Such shares are issuable upon exercise of outstanding options with fixed exercise prices.
Pursuant to Regulation C, Rule 457(h)(1) under the Securities Act of 1933, as amended, the
aggregate offering price and the fee have been computed upon the basis of the price at which
the options may be exercised. The offering price per share set forth for such shares is the
maximum exercise price per share at which such options are exercisable.
(2) The price of $16.94 per share which is the average of the high and low prices reported on the
Nasdaq National Market on June 2, 1996, is set forth solely for purposes of calculating the
filing fee pursuant to Rule 457(c) and is used only for those shares without a fixed exercise
price.
</TABLE>
2
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
The documents containing the information specified in this Item 2 will
be sent or given to employees as specified by Rule 428(b)(1). In accordance with
the rules and regulations of the Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus filed pursuant to Rule 424(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act"),
in Registration Statement No. 333-3940 on Form S-1, as
amended;
(b) Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1995 filed pursuant to the
Securities and Exchange Act of 1934, as amended (the "Exchange
Act");
(c) Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996 filed pursuant to the Exchange
Act; and
(d) Item 1, "Description of Registrant's Securities to be
Registered," contained in the Registrant's Registration
Statement on Form 8-A, filed pursuant to Section 12(g)
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of the Exchange Act, on October 20, 1995, and incorporating by
reference the information contained in the Registrant's
Registration Statement on Form S-1, Registration No. 33-97866.
All documents subsequently filed with the Commission 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 herein 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.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interest of Named Experts and Counsel.
-------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Massachusetts General Corporation Law and the Registrant's Second
Restated Articles of Organization and Second Amended and Restated By-laws
provide for indemnification of the Registrant's directors and officers for
liabilities and expenses that they may incur in such capacities. In general,
directors and officers are indemnified with respect to actions taken in good
faith in a manner reasonably believed to be in, or not opposed to, the best
interests of the Registrant, and with respect to any criminal action or
proceeding, actions that the indemnified party had no reasonable cause to
believe were unlawful. Reference is made to the Registrant's Second Restated
Articles of Organization and Second Amended and Restated By-Laws filed as
Exhibits 3.2 and 3.4, respectively, to the Registrant's Registration Statement
on Form S-1 (File No. 33-97866) and incorporated herein by reference.
The Underwriting Agreement provides that the Underwriters are
obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Company against certain liabilities, including
liabilities under the Securities Act. Reference is made to the form of
Underwriting Agreement filed as Exhibit 1.1 to the Registrant's Registration
Statement on Form S-1 (File No. 333-3940) and incorporated herein by reference.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
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<TABLE>
Item 8. Exhibits
--------
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C>
Exhibit 4.1 Specimen certificate representing the Common Stock of
the Registrant (filed as Exhibit 4.1 to Registrant's
Registration Statement on Form S-1 (File No. 33-97866)
and incorporated herein by reference).
Exhibit 4.2 Second Restated Articles of Organization of the
Registrant (filed as Exhibit 3.2 to Registrant's
Registration Statement on Form S-1 (File No. 33-97866)
and incorporated herein by reference).
Exhibit 4.3 Second Amended and Restated By-laws of the Registrant
(filed as Exhibit 3.4 to Registrant's Registration
Statement on Form S-1 (File No. 33-97866) and
incorporated herein by reference).
Exhibit 4.4 1984 Incentive Stock Option Plan (filed as Exhibit 10.1
to Registrant's Registration Statement on Form S-1
(File No. 33-97866) and incorporated herein by
reference).
Exhibit 4.5 1989 Stock Option Plan (filed as Exhibit 10.2 to
Registrant's Registration Statement on Form S-1 (File
No. 33-97866) and incorporated herein by reference).
Exhibit 4.6 1995 Stock Plan (filed as Exhibit 10.3 to Registrant's
Registration Statement on Form S-1 (File No. 33-97866)
and incorporated herein by reference).
Exhibit 4.7 1995 Non-Employee Director Stock Option Plan (filed as
Exhibit 10.5 to Registrant's Registration Statement on
Form S-1 (File No. 33-97866) and incorporated herein by
reference).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Price Waterhouse LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature
page to this Registration Statement).
</TABLE>
Item 9. Undertakings.
------------
(a) The undersigned Registrant hereby undertakes:
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(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. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
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 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
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.
(b) 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
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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) 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 provisions described in Item 6, 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 questions 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.
7
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Software 2000, Inc., 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 Hyannis, Commonwealth of
Massachusetts, on this 7th day of June, 1996.
SOFTWARE 2000, INC.
By:/s/ Robert A. Pemberton
---------------------------------
Robert A. Pemberton
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints, jointly and severally, Robert
A. Pemberton and Frederick J. Lizza, his attorneys-in-fact, each with the power
of substitution, for him in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8 (including post-effective amendments),
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
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<TABLE>
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.
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Robert A. Pemberton Chairman of the Board and Chief June 7, 1996
- ----------------------- Executive Officer (Principal Executive
Robert A. Pemberton Officer)
/s/ Frederick J. Lizza President, Chief Operating Officer and June 7, 1996
- ----------------------- Director
Frederick J. Lizza
/s/ Daniel J. Kossmann Chief Financial Officer (Principal June 7, 1996
- ----------------------- Financial and Accounting Officer)
Daniel J. Kossmann
/s/ R. Stephen Cheheyl Director June 7, 1996
- -----------------------
R. Stephen Cheheyl
Director
- -----------------------
Manuel Correia
/s/ Roland D. Pampel Director June 7, 1996
- -----------------------
Roland D. Pampel
Director
- -----------------------
Robert P. Schechter
</TABLE>
<PAGE> 10
<TABLE>
INDEX TO EXHIBITS
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
<S> <C> <C>
Exhibit 4.1 Specimen certificate representing the Common Stock of the Registrant (filed as
Exhibit 4.1 to Registrant's Registration Statement on Form S-1 (File No. 33-97866)
and incorporated herein by reference).
Exhibit 4.2 Second Restated Articles of Organization of the Registrant (filed as Exhibit 3.2 to
Registrant's Registration Statement on Form S-1 (File No. 33-97866) and
incorporated herein by reference).
Exhibit 4.3 Second Amended and Restated By-Laws of the Registrant (filed as Exhibit 3.4 to
Registrant's Registration Statement on Form S-1 (File No. 33-97866) and
incorporated herein by reference).
Exhibit 4.4 1984 Incentive Stock Option Plan (filed as Exhibit 10.1 to Registrant's
Registration Statement on Form S-1 (File No. 33-97866) and incorporated herein by
reference).
Exhibit 4.5 1989 Stock Option Plan (filed as Exhibit 10.2 to Registrant's Registration
Statement on Form S-1 (File No. 33-97866) and incorporated herein by reference).
Exhibit 4.6 1995 Stock Plan (filed as Exhibit 10.3 to Registrant's Registration Statement on
Form S-1 (File No. 33-97866) and incorporated herein by reference).
Exhibit 4.7 1995 Non-Employee Director Stock Option Plan (filed as Exhibit 10.5 to
Registrant's Registration Statement on Form S-1 (File No. 33-97866) and
incorporated herein by reference).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of Price Waterhouse LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in Exhibit 5.1).
Exhibit 24.1 Power of Attorney (included as part of the signature page to this Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
June 7, 1996
Software 2000, Inc.
25 Communications Way
Hyannis, MA 02601
Re: Registration Statement on Form S-8 Relating to the 1984 Incentive
Stock Option Plan, 1989 Stock Option Plan, 1995 Stock Plan and
1995 Non-Employee Director Stock Option Plan (the "Plans") of
Software 2000, Inc. (the "Company")
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by the Company on or about June 5, 1996
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to an aggregate of 7,244,295 shares of Common Stock, $.01 par
value per share, of the Company issuable pursuant to the Plans (the "Shares").
We have examined, are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the Second Restated Articles of
Organization, the Second Amended and Restated By-Laws of the Company, the minute
books and stock records of the Company and originals of such other documents,
certificates and proceedings as we have deemed necessary for the purpose of
rendering this opinion.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued and paid for in accordance with the terms of
the related Plans according to the terms of any option or purchase right granted
thereunder and duly authorized by the Company's Board of Directors or
Compensation Committee and/or any related agreements with the Company, the
Shares will be validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
TESTA, HURWITZ & THIBEAULT, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Software 2000, Inc. of our report dated October 19,
1995 appearing on page F-2 of the consolidated financial statements which is
included in the Registration Statements dated November 13, 1995 (No. 33-97866)
and May 9, 1996 (No. 333-3940) of Software 2000, Inc. filed on Form S-1. We
also consent to the application of such report to the Financial Statement
Schedule, which appears on page S-1 on these Forms S-1, for each of the two
years in the period ended August 31, 1994 and for the year ended September 30,
1995 listed under Item 16(b) of these Forms S-1 when such schedule is read in
conjunction with the financial statements referred to in our report. The
audits referred to in such report also included this schedule.
PRICE WATERHOUSE LLP
Boston, Massachusetts
June 7, 1995
