As filed with the Securities and Exchange Commission on July 24, 1998
Registration No. 333-___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
PSW TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2796054
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6300 Bridgepoint Parkway, Building 3, Suite 200
Austin, Texas 78730
(Address of principal executive offices) (Zip Code)
PSW TECHNOLOGIES, INC.
1996 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the Plan)
Dr. W. Frank King
Chief Executive Officer
PSW Technologies, Inc.
6300 Bridgepoint Parkway, Building 3, Suite 200
Austin, Texas 78730
(Name and address of agent for service)
(512) 343-6666
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
Common Stock 1,000,000 shares $6.4375 $6,437,500 $1,900
$0.01 par value
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the PSW Technologies, Inc.
1996 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 prices per share of the Registrant's Common
Stock on July 20, 1998, as reported on the Nasdaq National Market.
<PAGE>
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
PSW Technologies, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 filed with the Commission on
March 27, 1998 pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "1934 Act");
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998 filed with the Commission on May
15, 1998 pursuant to Section 13 of the 1934 Act; and
(c) The Registrant's Registration Statement on Form 8-A, No.
000-29372 filed with the Commission on May 29, 1997, pursuant
to Section 12(g) of 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
The Registrant's Certificate of Incorporation provides that, except to
the extent prohibited by the Delaware General Corporation Law ("DGCL"), its
directors shall not be personally liable to the Registrant or its stockholders
for monetary damages for any breach of fiduciary duty as directors of the
Registrant. Under Delaware law, the directors have a fiduciary duty to the
Registrant that is not eliminated by this provision of the Certificate of
Incorporation and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available. In
addition, each director will continue to be subject to liability under Delaware
law for breach of the director's duty of loyalty to the Registrant, for acts or
omissions which are found by a court of competent jurisdiction to be not in good
faith or involving intentional misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are prohibited by
Delaware law.
The Certificate of Incorporation also provides that the Registrant
shall indemnify, to the fullest extent permitted by Section 145 of the DGCL, all
present and former directors and officers of the Registrant, and any party which
is or was serving as director, officer, or trustee of any entity at the
Registrant's request, in connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative to which such person is made or
threatened to be made a party by reason of actions or omissions while serving in
such capacity. Indemnification by the Registrant includes payment of expenses in
defense of the indemnified party in advance of any proceeding or final
disposition thereof. The rights to indemnification provided in this provision do
not preclude the exercise of any other indemnification rights by any party
pursuant to any law, agreement or vote of the stockholders or the disinterested
directors of the Registrant. The Registrant has purchased a directors' and
officers' liability insurance policy.
Section 145 of the DGCL generally allows the Registrant to indemnify
the parties described in the preceding paragraph for all expenses, judgments,
fines and amounts in settlement actually paid and reasonably incurred in
connection with any proceedings so long as such party acted in good faith and in
a manner reasonably believed to be in or not opposed to the Registrant's best
interests and, with respect to any criminal proceedings, if such party had no
reasonable cause to believe his or her conduct to be unlawful. Indemnification
may only be made by the Registrant if the applicable standard of conduct set
forth in Section 145 has been met by the indemnified party upon a determination
made (i) by the Board of Directors by a majority vote of the directors who are
not parties to such proceedings (even though less than a quorum), or (ii) by a
committee of such directors designated by majority vote of such directors (even
though less than a quorum), or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (iv)
by the stockholders.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The exhibits listed in the accompanying index to exhibits are filed or
incorporated as part of this Registration Statement.
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 this Registration Statement
or any material change to such information in 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 1996 Stock Option/Stock Issuance Plan.
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.
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 indemnity provisions summarized in Item 6, or otherwise, the
Registrant has been advised that, in the opinion of the Commission, 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.
<PAGE>
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 Austin, State of Texas, on this 24th
day of July, 1998.
PSW TECHNOLOGIES, INC.
By: /s/ W. Frank King
Dr. W. Frank King
President and Chief Executive Officer
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/ W. Frank King President and Chief Executive Officer July 24, 1998
- ----------------------------
Dr. W. Frank King (Principal Executive Officer)
/s/ Keith D. Thatcher Vice President of Finance, Treasurer July 24, 1998
- ----------------------------
Keith D. Thatcher and Chief Financial Officer
(Principal Financial Officer)
/s/ Kasaundra L. Simpson Financial Reporting and Budgeting July 24, 1998
- ----------------------------
Kasaundra L. Simpson Manager
(Principal Accounting Officer)
/s/ Wade E.Saadi Chairman of the Board of Directors July 24, 1998
- ----------------------------
Wade E. Saadi
/s/ Edward C. Ateyeh, Jr. Director July 24, 1998
- ----------------------------
Edward C. Ateyeh, Jr.
/s/ Jonathan D. Wallace Director July 24, 1998
- ----------------------------
Jonathan D. Wallace, Esq.
/s/ Kevin B. Kurtzman Director July 24, 1998
- ----------------------------
Kevin B. Kurtzman
/s/ Michael J. Maples Director July 24, 1998
- ----------------------------
Michael J. Maples
/s/ Thomas A. Herring Director July 24, 1998
- ----------------------------
Thomas A. Herring
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
PSW TECHNOLOGIES, INC.
<PAGE>
\
EXHIBIT INDEX
Exhibit Number Exhibit
4.1 Instruments Defining the Rights of Stockholders. Reference is made to the
Registrant's Registration Statement on Form 8-A, No. 000-29372, including
the exhibits thereto, incorporated herein by reference pursuant to Item
3(c) of this Registration Statement.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.1
99.1* PSW Technologies, Inc. 1996 Stock Option/Stock Issuance Plan.
99.2 Amendment No. 1 to PSW Technologies, Inc. 1996 Stock Option/Stock Issuance
Plan.
99.3* Form of Notice of Grant of Stock Option.
99.4* Form of Stock Option Agreement.
99.5*Form of Addendum to Stock Option Agreement (Involuntary Termination
Following Corporate Transaction/Change in Control).
99.6*Form of Addendum to Stock Option Agreement (Limited Stock Appreciation
Rights).
* Exhibits 99.1, 99.3, 99.4, 99.5 and 99.6 are incorporated herein by
reference to Exhibits 99.1, 99.2, 99.3, 99.4 and 99.5, respectively of
Registrant's Registration Statement No. 333-28739 on Form S-8, filed with the
Commission on June 6, 1997.
EXHIBIT 5.1
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
July 24, 1998
PSW Technologies, Inc.
6300 Bridgeport Parkway, Building 3
Suite 200
Austin, TX 78730
Re: PSW Technologies, Inc.
Registration Statement for Offering of 1,000,000 Shares of Common
Stock
Ladies and Gentlemen:
We have acted as counsel to PSW Technologies, Inc., a Delaware
corporation (the "Company") in connection with the registration on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, of
1,000,000 shares of common stock (the "Shares") and related stock options for
issuance under the Company's 1996 Stock Option/Stock Issuance Plan (the "Plan").
This opinion is being furnished in accordance with the requirements of
Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment of the
Plan. Based on such review, we are of the opinion that, if, as an when the
Shares have been issued and sold (and the consideration therefor received)
pursuant to (a) the provisions of option agreements duly authorized under the
Plan and in accordance with the Registration Statement, or (b) duly authorized
direct stock issuances in accordance with the Plan and in accordance with the
Registration Statement, such Shares will be duly authorized, legally issued,
fully paid and nonassessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement.
This opinion letter is rendered as of the date first written above and
we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Plan or the Shares.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Employees' Stock Purchase Plan of PSW Technologies,
Inc. of our report dated January 19, 1998 with respect to the financial
statements of PSW Technologies, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1997, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Austin, Texas
July 21, 1998
EXHIBIT 99.2
AMENDMENT NO. 1
1996 STOCK OPTION/STOCK ISSUANCE PLAN
PSW TECHNOLOGIES, INC.
AMENDMENT NO. 1
TO THE
1996 STOCK OPTION/STOCK ISSUANCE PLAN
The PSW Technologies, Inc. 1996 Stock Option/Stock Issuance
Plan (the "Plan") is hereby amended, effective March 31, 1998, as follows:
1. The second sentence of Article One, Section V, Paragraph A
is hereby amended to read as follows:
The maximum number of shares of Common Stock which may be
issued over the term of the Plan shall not exceed 2,715,000
shares.
2. Except as modified by this Plan amendment, the terms and
provisions of the Plan as in effect on the date hereof shall continue to shall
remain in full force and effect.
IN WITNESS WHEREOF, PSW Technologies, Inc. has authorized this
Plan amendment to be executed on its behalf by its duly-authorized officer
effective as of March 31, 1998.
PSW TECHNOLOGIES, INC.
By: /s/ Keith D. Thatcher
Title: VP of Finance, Treasurer,
and Chief Financial Officer
