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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 22, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SERVICEWARE TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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Delaware 25-1647861
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
333 Allegheny Avenue
Oakmont, PA 15139
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
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Amended and Restated Stock Option Plan
2000 Stock Incentive Plan
(FULL TITLE OF THE PLANS)
Mark Tapling
President and Chief Executive Officer
333 Allegheny Avenue
Oakmont, PA 15139
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(412) 826-1158
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF AGGREGATE
SECURITIES AMOUNT PROPOSED MAXIMUM OFFERING AMOUNT OF
TO BE TO BE OFFERING PRICE PER PRICE REGISTRATION
REGISTERED REGISTERED(1) SHARE FEE
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AMENDED AND RESTATED STOCK OPTION PLAN 2,071,827 shares $2.40(2) $4,972,385(2) $3,283
COMMON STOCK, PAR VALUE $.01 PER SHARE
2000 STOCK INCENTIVE PLAN COMMON STOCK, 374,300 shares $6.92(3) $2,590,156(3)
PAR VALUE $.01 PER SHARE 1,625,700 shares $3.00(4) $4,877,100(4)
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which are offered or issued under any of the plans to prevent
dilution resulting from stock splits, stock dividends or similar
transactions.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of calculating the
registration fee. The calculation is based upon the weighted average per
share exercise price of outstanding options under the Amended and Restated
Stock Option Plan.
(3) Calculated pursuant to Rule 457(h) under the Securities Act, solely for the
purpose of calculating the registration fee. The calculation is based upon
the weighted average per share exercise price of outstanding options under
the 2000 Stock Incentive Plan.
(4) Calculated pursuant to Rule 457(c) under the Securities Act solely for the
purpose of calculating the registration fee. The calculation with respect
to ungranted awards under the 2000 Stock Incentive Plan is based upon the
average of the high and low sale prices of the Registrant's Common Stock as
reported on November 20, 2000 on the Nasdaq National Market which date is
within 5 business days prior to the date of filing of this Registration
Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by ServiceWare Technologies, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
1. The Company's prospectus covering the offer and sale of shares
of the Company's Common Stock, par value $.01 per share
(the"Common Stock"), filed with the Commission on August 28,
2000 pursuant to Rule 424(b) under the Securities Act of 1933,
as amended (the "Securities Act"), which contains audited
financial statements for the Company's latest fiscal year for
which such statements have been filed.
2. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the
Commission on April 10, 2000, including any amendment or
report filed for the purpose of updating such description.
3. The Company's Form 10-Q for the quarter ended September 30,
2000, filed with the Commission on November 14, 2000.
All documents subsequently filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") after the date of this Registration Statement, but
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered by this Registration Statement have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of the filing
of such document with the Commission until the information contained therein is
superseded or updated by any subsequently filed document which is incorporated
by reference into this Registration Statement or by any document which
constitutes part of the prospectus relating to the Amended and Restated Stock
Option Plan or the 2000 Stock Incentive Plan meeting the requirements of Section
10(a) of the Securities Act.
ITEM 4. DESCRIPTION OF SECURITIES.
The class of securities to be offered under this Registration Statement
is registered under Section 12(g) of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, in its certificate of incorporation, to limit or
eliminate, subject to certain statutory limitations, the liability of directors
to the corporation or its stockholders for monetary damages for breaches of
fiduciary duty, except for liability (a) for any breach of the director's duty
of loyalty to the corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the DGCL, or (d) for any transaction from which
the director derived an improper personal benefit. Article VII of the Company's
Third Amended and Restated Certificate of Incorporation provides that the
personal liability of directors of the Company is eliminated to the fullest
extent permitted by Section 102(b)(7) of the DGCL.
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Under Section 145 of the DGCL, a corporation has the power to indemnify
directors and officers under certain prescribed circumstances and subject to
certain limitations against certain costs and expenses, including attorneys'
fees actually and reasonably incurred in connection with any action, suit or
proceeding, whether civil, criminal, administrative or investigative, to which
any of them is a party by reason of being a director or officer of the
corporation if it is determined that the director or officer acted in accordance
with the applicable standard of conduct set forth in such statutory provision.
Article VII of the Company's Bylaws provides that the Company will indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was (or to the extent permitted under Delaware law, has
agreed to be) a director, officer, employee or agent of the Company, or is or
was serving (or, to the extent permitted under Delaware law, has agreed to
serve) at the request of the Company as a director, officer, employee or agent
of another entity, against certain liabilities, costs and expenses. Article VII
further permits the Company to maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or agent
of another entity, against any liability asserted against such person and
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Company would have the power to indemnify such person
against such liability under the DGCL. The Company maintains directors' and
officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
as part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
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4.1 Form of Certificate of Incorporation, as amended,
(incorporated by reference to Exhibit 3.1 of the
Registrant's Registration Statement on Form S-1,
File No. 333-33818 (the "Form S-1")).
4.2 Form of Bylaws (incorporated by reference to
Exhibit 3.2 of the Form S-1).
4.4 Registrant's 2000 Stock Incentive Plan (incorporated by
reference to Exhibit 10.5 of the Form S-1).
4.5 Registrant's Amended and Restated Stock Option Plan
(incorporated by reference to Exhibit 10.7 of the Form S-1).
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Morgan, Lewis & Bockius LLP
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of attorney (included on signature page of this
Registration Statement).
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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 Securities Act;
(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;
(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 pursuant to Section 13(a) or 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.
* * *
(h) 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 foregoing provisions, 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 question 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
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 Oakmont, Commonwealth of Pennsylvania, on November
22, 2000.
SERVICEWARE TECHNOLOGIES, INC.
By: /s/ MARK TAPLING
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Mark Tapling
President and Chief
Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned officers and
directors of ServiceWare Technologies, Inc., a Delaware corporation, do hereby
constitute and appoint Mark Tapling and Mark Finkel, and each 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 any 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 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 each of
the undersigned hereby ratifies and confirms all that said attorneys and agents,
or any one of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
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:
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Signature Capacity Date
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/s/ MARK TAPLING President, Principal Executive Officer November 22, 2000
--------------------------- and Director
Mark Tapling
/s/ MARK FINKEL Chief Financial Officer, Principal November 22, 2000
--------------------------- Financial and Accounting Officer
Mark Finkel
/s/ RAJIV ENAND Director November 22, 2000
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Rajiv Enand
/S/ SUSANNE HARRISON Director November 22, 2000
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Susanne Harrison
/s/ BRUCE MOLLOY Director November 22, 2000
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Bruce Molloy
/s/ TIMOTHY WALLACE Director November 22, 2000
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Timothy Wallace
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EXHIBIT INDEX
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SEQUENTIAL PAGE
EXHIBIT NO. DESCRIPTION NUMBER
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5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Morgan, Lewis & Bockius LLP
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of attorney (included on signature page of this
registration statement).
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