<PAGE>
As filed with the Securities and Exchange Commission on October 6, 1999
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
BREAKAWAY SOLUTIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3285165
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
50 ROWES WHARF, BOSTON, MASSACHUSETTS 02110
(Address of Principal Executive Offices) (Zip Code)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
GORDON BROOKS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BREAKAWAY SOLUTIONS, INC.
50 ROWES WHARF
BOSTON, MASSACHUSETTS 02110
(Name and Address of Agent for Service)
(617) 960-3400
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 400,000 $14.00(1) $5,600,000(1) $1,557
$.000125 par value shares
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</TABLE>
(1) Calculated in accordance with Rules 457 (c) and (h) under the Securities
Act of 1933, as amended, based upon the public offering price set forth in
the Registrant's Prospectus, dated October 5, 1999, relating to the
Registrant's initial public offering of its Common Stock.
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<PAGE>
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 1999 Employee Stock Purchase 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 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 on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus
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
document referred to in (1) above.
(3) The description of the common stock of the Registrant,
$0.000125 par value per share (the "Common Stock"), contained in a
registration statement filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
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. 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 other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
An investment partnership comprised of partners and senior executives
of Hale and Dorr LLP owns 7,695 shares of the Registrant's Series B Preferred
Stock which it acquired in the Registrant's Series B financing in July 1999
for a per share purchase price of $6.50.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation (the "Certificate of
Incorporation") provides that no director of the Registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a director,
except to the extent that the Delaware General Corporation Law (the "Law")
prohibits the elimination or limitation of liability of directors for breach of
fiduciary duty.
The Certificate of Incorporation provides that a director or officer of
the Registrant (a) shall be indemnified by the Registrant against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred in connection with any litigation or other legal proceeding (other than
an action by or in the right of the Registrant) brought against him by virtue of
his position as a director or officer of the Registrant if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and (b)
shall be indemnified by the Registrant against all expenses (including
attorneys' fees) and amounts paid in settlement incurred in connection with any
action by or in the right of the Registrant brought against him by virtue of his
position as a director or officer of the Registrant if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Registrant, except that no indemnification shall be made with
respect to any matter as to which such person shall have been adjudged to be
liable to the Registrant, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses. Notwithstanding the foregoing, to the extent
that a director or officer has been successful, on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, he
is required to be indemnified by the Registrant against all expenses (including
attorneys' fees) incurred in connection therewith. Expenses shall be advanced to
a director or officer at his request, unless it is determined that he did not
act in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, and, with respect to any
criminal action or proceeding had reasonable cause to believe that his conduct
was unlawful, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
II-2
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As a condition precedent to the right of indemnification, the director
or officer must give the Registrant notice of the action for which indemnity is
sought and the Registrant has the right to participate in such action or assume
the defense thereof.
The Certificate of Incorporation further provides that the
indemnification provided therein is not exclusive and that Registrant may enter
into agreements with officers and directors providing for indemnification rights
and procedures different from those set forth in the Certificate of
Incorporation.
Section 145 of the Law provides that a corporation has the power to
indemnify a director, officer, employee or agent of the corporation and certain
other persons serving at the request of the corporation in related capacities
against amounts paid and expenses incurred in connection with an action or
proceeding to which he is, or is threatened to be, made a party by reason of
such position, if such person shall have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, in any criminal proceeding, if such person had no reasonable
cause to believe his conduct was unlawful; provided that, in the case of actions
brought by or in the right of the corporation, no indemnification shall be made
with respect to any matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the adjudicating
court determines that such indemnification is proper under the circumstances.
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.
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:
(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; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or
II-3
<PAGE>
any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (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
15(d) of the Exchange Act that are incorporated by reference 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.
(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 undersigned 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 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 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.
II-4
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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 Boston, Massachusetts on October 6, 1999.
BREAKAWAY SOLUTIONS, INC.
By: /s/GORDON BROOKS
--------------------------------
Gordon Brooks
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Breakaway Solutions, Inc.
hereby severally constitute and appoint Gordon Brooks, Kevin Comerford and
Thomas L. Barrette, Jr., 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 Breakaway Solutions, 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.
II-5
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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.
<TABLE>
Signature Title Date
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<S> <C> <C>
/s/ Gordon Brooks President and Chief October 6, 1999
- ------------------------------------------- Executive Officer
Gordon Brooks (Principal Executive
Officer), and Director
Vice President October 6, 1999
/s/Kevin Comerford Administration, Chief
- ------------------------------------------- Financial Officer,
Kevin Comerford Treasurer and Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Christopher H. Greendale Chairman of the Board October 6, 1999
- ------------------------------------------- of Directors
Christopher H. Greendale
/s/ Frank Selldorff Director October 6, 1999
- -------------------------------------------
Frank Selldorff
/s/ Walter W. Buckley
- ------------------------------------------- Director October 6, 1999
Walter W. Buckley
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
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3.1 (1) Second Amended and Restated Certificate of Incorporation of the
Registrant.
3.2 (1) By-Laws of the Registrant.
3.3 (1) Form of Third Amended and Restated Certificate of Incorporation of
the Registrant to be effective upon closing of the Registrant's initial
public offering.
3.4 (1) Form of Amended and Restated By-Laws of the Registrant to be
effective upon closing of the Registrant's initial public offering.
3.5 (1) Certificate of Amendment to Second Amended and Restated Certificate of
Incorporation.
3.6 (1) Certificate of Amendment to Second Amended and Restated Certificate of
Incorporation.
4.1 (1) Specimen certificate for shares of the Registrant's common stock.
5.1 Opinion of Hale and Dorr LLP.
10.3 (1) 1999 Employee Stock Purchase Plan.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
.
23.2 Consent of KPMG LLP regarding Breakaway Solutions, Inc.
23.3 Consent of KPMG LLP regarding Applica Corporation.
23.4 Consent of KPMG LLP regarding WPL Laboratories, Inc.
23.5 Consent of KPMG LLP regarding Web Yes, Inc.
24.1 Power of Attorney (included in page II-5).
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(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-83343).
II-7
<PAGE>
EXHIBIT 5.1
HALE AND DORR LLP
Counsellors At Law
60 State Street, Boston, Massachusetts 02109
TEL 617-526-6000 * FAX 617-526-5000
October 6, 1999
Breakaway Solutions, Inc.
50 Rowes Wharf
Boston, MA 02110
Re: 1999 EMPLOYEE STOCK PURCHASE 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 400,000 shares of Common Stock,
$0.000125 par value per share (the "Shares"), of Breakaway Solutions, Inc., a
Delaware corporation (the "Company"), issuable under the Company's 1999 Employee
Stock Purchase 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 certified, photostatic or other 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
statutory provisions of the General Corporation Law of the State of Delaware 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, and such Shares when issued
and paid for in accordance with the terms and conditions of the Plan, will be
validly issued, fully
<PAGE>
Breakaway Solutions, Inc.
October 6, 1999
Page 2
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. 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
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors of
Breakaway Solutions, Inc.
We consent to the incorporation by reference in this Registration Statement
(Form S-8), pertaining to the 1999 Employee Stock Purchase Plan of Breakaway
Solutions, Inc. (the "Company") of our report dated June
30, 1999, except for Note 11, which is as of July 12, 1999 and Note
13, which is as of October 5, 1999, with respect to the consolidated
financial statements of the Company included in the Company's Registration
Statement on Form S-1 (File No. 333-83343) as filed with the Securities and
Exchange Commission.
/s/KPMG LLP
Boston, Massachusetts
October 6, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors of
Applica Corporation
We consent to the incorporation by reference in this Registration Statement
(Form S-8), pertaining to the 1999 Employee Stock Purchase Plan of Breakaway
Solutions, Inc. (the "Company") of our report dated June
30, 1999, with respect to the financial statements of Applica Corporation
included in the Company's Registration Statement on Form S-1 (File No.
333-83343) as filed with the Securities and Exchange Commission.
/s/KPMG LLP
Boston, Massachusetts
October 6, 1999
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors of
WPL Laboratories, Inc.
We consent to the incorporation by reference in this Registration Statement
(Form S-8), pertaining to the 1999 Employee Stock Purchase Plan of Breakaway
Solutions, Inc. (the "Company") of our report dated June
30, 1999, with respect to the financial statements of WPL Laboratories, Inc.
included in the Company's Registration Statement on Form S-1 (File No.
333-83343) as filed with the Securities and Exchange Commission.
/s/KPMG LLP
Boston, Massachusetts
October 6, 1999
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors of
Web Yes, Inc.
We consent to the incorporation by reference in this Registration Statement
(Form S-8), pertaining to the 1999 Employee Stock Purchase Plan of Breakaway
Solutions, Inc. (the "Company") of our report dated June 30, 1999, with
respect to the consolidated financial statements of Web Yes, Inc. included in
the Company's Registration Statement on Form S-1 (File No. 333-83343) as
filed with the Securities and Exchange Commission.
/s/KPMG LLP
Boston, Massachusetts
October 6, 1999
