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As filed with the Securities and Exchange Commission
on September 9, 1997
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PERITUS SOFTWARE SERVICES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts
(State or Other Jurisdiction of Incorporation or Organization)
04-3126919
(I.R.S. Employer Identification No.)
304 Concord Road, Billerica, Massachusetts 01821-3485
(Address of Principal Executive Offices) (Zip Code)
1997 DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
Peter B. Tarr, Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(Name and Address of Agent for Service)
(617) 526-6000
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<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
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 200,000 $26.31(1) $5,262,000(1) $1,595
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(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the Nasdaq National Market on September 2, 1997 in accordance with
Rules 457(c) and 457(h) of the Securities Act of 1933, as amended.
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</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's 1997 Director Stock Option Plan
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
-----------------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are filed with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest prospectus dated July 2, 1997 filed
pursuant to Rule 424(b) under the Securities Act that contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the prospectus
referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in the Registration
Statement on Form 8-A filed by the Registrant with the Commission on
June 4, 1997.
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 shares of Common Stock
offered hereby have been sold or which deregisters all shares of Common Stock
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be part hereof from the date of the filing of such documents.
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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 67 of Chapter 156B of the Massachusetts General Laws
("Section 67") provides that a corporation may indemnify its directors and
officers to the extent specified in or authorized by (i) the articles of
organization, (ii) a by-law adopted by the stockholders or (iii) a vote adopted
by the holders of a majority of the shares of stock entitled to vote on the
election of directors. In all instances, the extent to which a corporation
provides indemnification to its directors and officers under Section 67 is
optional. In its Restated Articles of Organization, the Registrant has elected
to commit to provide indemnification to its directors and officers in specified
circumstances. Generally, Article 6 of the Registrant's Restated Articles of
Organization indemnifies directors and officers of the Registrant against
liabilities and expenses arising out of legal proceedings brought against them
by reason of their status or service as directors or officers or by reason of
their agreeing to serve, at the request of the Registrant, as a director or
officer of, or in a similar capacity with, another organization or in any
capacity with respect to any employee benefit plan of the Registrant. Under this
provision, a director or officer of the Registrant shall be indemnified by the
Registrant for all expenses, judgments, fines and amounts paid in settlement of
such proceedings, even if he or she is not successful on the merits, if he or
she acted in good faith and in a manner he or she reasonably believed to be in
the best interests of the Registrant.
The Registrant's Restated Articles of Organization establish the
presumption that the director or officer has met the applicable standard of
conduct required for indemnification. The indemnification above shall be made
unless the Registrant determines that the applicable standard of conduct has not
been met. Such a determination may be made by a majority of a quorum of the
directors, independent legal counsel, a court of competent jurisdiction or a
majority vote of a quorum of the outstanding shares of stock (which quorum shall
consist of stockholders who are not parties to the suit). The Board of
Directors shall authorize advancing litigation expenses to a director or officer
at his request upon receipt of an undertaking by such director or officer to
repay such expenses if it is ultimately determined that he or she is not
entitled to indemnification for such expenses.
The Registrant's Restated Articles of Organization also provide that, in
the event of a determination by the Registrant that a director or officer did
not meet the
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standard of conduct required for indemnification, or if the Registrant fails to
make an indemnification payment or an advance of expenses within 60 days after
such payment is claimed by a director or officer, such director or officer may
petition a court to make an independent determination of whether such director
or officer is entitled to indemnification. The Registrant's Restated Articles
of Organization explicitly provide for partial indemnification of costs and
expenses in the event that a director or officer is not entitled to full
indemnification.
Article 6 of the Registrant's Restated Articles of Organization also
eliminates the personal liability of the Registrant's directors to the
Registrant or its stockholders for monetary damages for breach of a director's
fiduciary duty, except to the extent such elimination or limitation is
prohibited by Chapter 156B of the Massachusetts General Laws.
The Registrant has purchased and maintains insurance coverage under a
policy insuring directors and officers of the Registrant against certain
liabilities which they may incur as directors or officers of the Registrant.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
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1. The 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.
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(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.
2. The 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 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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 therein, and the offering of such securities
at that time shall be deemed to be in the initial bona fide offering thereof.
3. 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 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
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 Town of Billerica, Commonwealth of Massachusetts, on
this 28th day of August, 1997.
PERITUS SOFTWARE SERVICES, INC.
By: /s/ ALLEN K. DEARY
---------------------------
Allen K. Deary
Vice President, Finance and
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Peritus Software Services,
Inc., hereby severally constitute Dominic K. Chan, Douglas A. Catalano, Allen K.
Deary and Peter B. Tarr, and each of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our
names in the capacities indicated below, the Registration Statement on Form S-8
filed herewith and any and all subsequent amendments to said Registration
Statement, and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable Peritus Software Services, Inc.
to comply with all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ DOMINIC K. CHAN Chairman of the Board August 28, 1997
- ----------------------- and Chief Executive
Dominic K. Chan Officer (Principal
Executive Officer)
/s/ DOUGLAS A. CATALANO President, Chief August 28, 1997
- ----------------------- Operating Officer and
Douglas A. Catalano Director
/s/ ALLEN K. DEARY Vice President, Finance, August 28, 1997
- ----------------------- Chief Financial Officer
Allen K. Deary and Director (Principal
Financial Officer)
/s/ JOHN E. MACPHEE Director of Finance and August 28, 1997
- ----------------------- Treasurer (Principal
John E. MacPhee Accounting Officer)
/s/ ARTHUR CARR Director August 30, 1997
- -----------------------
Arthur Carr
/s/ JOHN GIORDANO Director August 21, 1997
- -----------------------
John Giordano
/s/ W. MICHAEL HUMPHREYS Director August 28, 1997
- ------------------------
W. Michael Humphreys
/s/ AXEL LEBLOIS Director August 30, 1997
- ------------------------
Axel Leblois
/s/ HENRY MCCANCE Director August 30, 1997
- ------------------------
Henry McCance
/s/ ROLAND PAMPEL Director August 28, 1997
- ------------------------
Roland Pampel
</TABLE>
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Exhibit Index
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<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4/(1)/ Specimen Certificate for shares of Common Stock, $.01 par value
per share, of the Registrant
5 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24 Power of Attorney (included on the signature page of this
Registration Statement)
</TABLE>
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/1/ Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1 (Commission File No. 333-27087).
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EXHIBIT 5
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HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 * FAX 617-526-5000
September 9, 1997
Peritus Software Services, Inc.
304 Concord Road
Billerica, Massachusetts 01821-3485
Re: 1997 Director Stock Option Plan
-------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 200,000 shares of common stock, $.01 par value
per share (the "Shares"), of Peritus Software Services, Inc., a Massachusetts
corporation (the "Company"), issuable under the Company's 1997 Director Stock
Option Plan (the "Plan").
We have examined the Restated Articles of Organization of the Company
and the Amended and Restated By-Laws of the Company, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies, the authenticity of the
originals of such latter documents and the legal competence of all signatories
to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the shares in accordance with the Plan, to register and qualify the
shares for sale under all applicable state securities or "blue sky" laws.
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Peritus Software Services, Inc.
September 9, 1997
Page 2
We express no opinion herein as to the laws of any state or jurisdiction
other than the laws of the Commonwealth of Massachusetts and the federal laws of
the United States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Company has duly authorized for issuance the Shares covered by the Registration
Statement to be issued under the Plan, as described in the Registration
Statement, and such Shares, when issued in accordance with the terms of the
Plan, will be legally issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein under the caption "Interests of Named Experts and Counsel." In
giving such consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the
rules and regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 14, 1997, which appears on page
F-2 of the Prospectus constituting part of Peritus Software Services, Inc.'s
Registration Statement on Form S-1 (No. 333-27087).
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Boston, Massachusetts
September 9, 1997
