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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 28, 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)
Delaware 25-1647861
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
333 Allegheny Avenue
Oakmont, PA 15139
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Employee Stock Purchase Plan
(FULL TITLE OF THE PLAN)
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)
CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE PRICE FEE
------------------------------------------ ----------------- --------------------- ------------------ -------------------
<S> <C> <C> <C> <C>
EMPLOYEE STOCK PURCHASE PLAN COMMON 500,000 shares $5.95(2) $2,975,000(2) $785.40
STOCK, PAR VALUE $.01 PER SHARE
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which are offered or issued under the Employee Stock Purchase
Plan 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, solely for the purpose of calculating the registration fee. The
calculation is based upon the initial public offering price per share as
set forth in the Registrant's Prospectus pursuant to Rule 424(b) filed with
the Securities and Exchange Commission on August 28, 2000, multiplied by
85%, which is the percentage of the fair market value of the Common Stock
applicable to purchases under the Employee Stock Purchase Plan.
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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.
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 Employee Stock Purchase 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.
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
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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 Amended and Restated 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 expects
to maintain 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:
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EXHIBIT NO. DESCRIPTION
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<S> <C>
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") and to be effective upon closing of the Registrant's
initial public offering).
4.2 Form of Bylaws (incorporated by reference to Exhibit 3.2 of the Form S-1 and to
be effective upon the closing of the Registrant's initial public offering).
4.4 Registrant's Employee Stock Purchase Plan (incorporated by reference to Exhibit
10.6 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 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;
(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 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 August 28,
2000.
SERVICEWARE TECHNOLOGIES, INC.
By: /s/ MARK TAPLING
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Mark Tapling
President and Chief
Executive Officer
KNOWN ALL PERSONS BY THESE PRESENTS, that the undersigned officers and
directors of ServiceWare Technologies, Inc., a Delaware corporation, do hereby
constitute and appoint Rajiv Enand 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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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ MARK TAPLING President, Principal Executive Officer August 28, 2000
--------------------------- and Director
Mark Tapling
/s/ MARK FINKEL Chief Financial Officer, Principal Financial August 28, 2000
--------------------------- and Accounting Officer
Mark Finkel
/s/ RAJIV ENAND Director August 28, 2000
---------------------------
Rajiv Enand
/s/ KEVIN HALL Director August 28, 2000
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Kevin Hall
/S/ SUSANNE HARRISON Director August 28, 2000
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Susanne Harrison
/s/ BRUCE MOLLOY Director August 28, 2000
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Bruce Molloy
/s/ TIMOTHY WALLACE Director August 28, 2000
---------------------------
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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