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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 22, 2000
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
SILVERSTREAM SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3318325
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
TWO FEDERAL STREET, BILLERICA, MA 01821
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
DAVID A. LITWACK
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SILVERSTREAM SOFTWARE, INC.
TWO FEDERAL STREET
BILLERICA, MA 01821
(Name and Address of Agent for Service)
(978) 262-3000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------- ----------------- ---------------------- --------------------- -----------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Aount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ----------------------------- ----------------- ---------------------- --------------------- -----------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 2,500,000 $30.375(1) $75,937,500(1) $20,048
par value shares
- ----------------------------- ----------------- ---------------------- --------------------- -----------------------
</TABLE>
(1) Computed in accordance with Rules 457(c) and (h) under the Securities
Act of 1933, as amended, based upon the average of the high and low
prices of the Common Stock as reported by the Nasdaq National Market on
May 18, 2000.
<PAGE> 2
STATEMENT OF INCORPORATION BY REFERENCE
Except as otherwise set forth below, this Registration Statement on
Form S-8 incorporates by reference the contents of the Registration Statement on
Form S-8, File No. 333-85829, relating to the Registrant's Amended and Restated
1997 Stock Incentive Plan.
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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 Billerica, Massachusetts on May 22, 2000.
SILVERSTREAM SOFTWARE, INC.
By: /s/ David A. Litwack
-------------------------------------
David A. Litwack
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of SilverStream Software,
Inc. hereby severally constitute and appoint David A. Litwack and Craig A.
Dynes, 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 SilverStream Software, 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.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
SIGNATURE TITLE DATE
/s/ David R. Skok Chairman of the Board of Directors May 22, 2000
- ---------------------
David R. Skok
/s/ David A. Litwack President, Chief Executive May 22, 2000
- --------------------- Officer and Director (Principal
David A. Litwack Executive Officer)
/s/ Craig A. Dynes Vice President, Chief Financial May 22, 2000
- --------------------- Officer, Treasurer and Secretary
Craig A. Dynes (Prinicipal Financial Officer and
Principal Accounting Officer)
/s/ Timothy Barrows Director May 22, 2000
- ---------------------
Timothy Barrows
/s/ Richard A. D'Amore Director May 22, 2000
- ---------------------
Richard A. D'Amore
- --------------------- Director May __, 2000
Paul J. Severino
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 (1) Second Amended and Restated Certificate of Incorporation of
the Registrant.
4.2 (1) Amended and Restated By-Laws of the Registrant.
4.3 (2) Specimen Certificate for Common Stock 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 Ernst & Young LLP.
24 Power of Attorney (included in the signature pages of this
Registration Statement).
(1) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, as amended (File No. 333-94103).
(2) Incorporated by reference to the Registrant's Registration Statement on
Form S-1, as amended (File No. 333-80553).
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Exhibit 5
HALE AND DORR LLP
COUNSELLORS AT LAW
WWW.HALEDORR.COM
60 STATE STREET * BOSTON, MA 02109
617-526-6000 * FAX 617-526-5000
May 22, 2000
SilverStream Software, Inc.
Two Federal Street
Billerica, MA 01821
Re: Amended and Restated 1997 Stock Incentive 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 (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to an aggregate of 2,500,000 shares of Common Stock,
$.001 par value per share (the "Shares"), of SilverStream Software, Inc., a
Delaware corporation (the "Company"), issuable under the Company's Amended and
Restated 1997 Stock Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation and By-Laws of the
Company, each as amended and restated to date 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 our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as 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.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of the Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plan, the Shares
will be validly 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.
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<S> <C>
BOSTON WASHINGTON, DC NEW YORK RESTON LONDON*
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Hale and Dorr LLP Includes Professional Corporations *an independent joint venture law firm
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Silver Stream Software, Inc.
May 22, 2000
Page 2
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. 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 AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Amended and Restated 1997 Stock Incentive Plan of
SilverStream Software, Inc. for the registration of 2,500,000 shares of its
common stock, of our report dated February 1, 2000 with respect to the
consolidated financial statements and schedule of SilverStream Software, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
May 18, 2000
