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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 21, 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
BREAKAWAY SOULUTIONS, 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)
1998 STOCK PLAN
1999 STOCK INCENTIVE 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
Title of Proposed 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, 25,440,330(1) $20.38(2) $518,473,925.40(2) $136,877.12
$0.000125 par value
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</TABLE>
(1) Consists of 15,840,330 shares issuable under the 1998 Stock Incentive
Plan and 9,600,000 shares issuable under the 1999 Stock Incentive plan.
(2) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low sale prices of the Common Stock
on the Nasdaq National Market on April 17, 2000 in accordance with Rules
457(o) and 457(h) under the securities Act of 1933, as amended.
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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 1998 Stock Plan and 1999 Stock
Incentive 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) of the Securities Act
of 1933, as amended (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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock being offered hereby will be passed
upon for the Registrant by Hale and Dorr LLP, Boston, Massachusetts. An
investment partnership comprised of partners and senior executives of Hale
and Dorr LLP owns 15,390 shares of the Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article SEVENTH of the Registrant's amended and restated
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
prohibits the elimination or limitation of liability of directors for breach of
fiduciary duty.
Article EIGHTH of the Registrant's amended and restated 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, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted
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to petition the court to make an independent determination as to whether such
person is entitled to indemnification. 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.
Article EIGHTH of the Registrant's amended and restated certificate of
incorporation further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General Corporation
Law is amended to expand the indemnification permitted to directors or officers
the Registrant must indemnify those persons to the fullest extent permitted by
such law as so amended.
Section 145 of the Delaware General Corporation 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
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(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 (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.
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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 this 21st day of April, 2000.
BREAKAWAY SOLUTIONS, INC.
By: /s/ Kevin Comerford
---------------------------------
KEVIN COMERFORD
VICE PRESIDENT, ADMINISTRATION, CHIEF
FINANCIAL OFFICER, TREASURER AND
SECRETARY
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.
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.
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<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Gordon Brooks President Chief Executive Officer and April 21, 2000
- ---------------------------- Director (Principal Executive Officer)
Gordon Brooks
/s/ Kevin Comerford Vice President Administration, Chief April 21, 2000
- ---------------------------- Financial Officer, Treasurer and
Kevin Comerford Secretary (Principal Financial Officer
and Principal Accounting Officer)
/s/ Christopher H. Greendale
- ----------------------------- Chairman of the Board of Directors April 21, 2000
Christopher H. Greendale
/s/ Frank Selldorf
- ----------------------------- Director April 21, 2000
Frank Selldorf
/s/ Walter W. Buckley
- ----------------------------- Director April 21, 2000
Walter W. Buckley
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
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4.1 (1) Third Amended and Restated Certificate of Incorporation of the
Registrant.
4.2 (1) Amended and Restated By-Laws of the Registrant.
4.3 (1) Specimen certificate for shares of the Registrant's common stock.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (contained on the signature page hereto).
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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).
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EXHIBIT 5.1
HALE AND DORR LLP
Counsellors At Law
www.haledorr.com
60 State Street, Boston, Massachusetts 02109
TEL 617-526-6000 * FAX 617-526-5000
April 21, 2000
Breakaway Solutions, Inc.
50 Rowes Wharf
Boston, MA 02110
Re: 1998 STOCK PLAN AND 1999 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 25,440,330 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 1998 Stock Plan and 1999 Stock Incentive Plan (the "Plans").
We have examined the Third and Amended and Restated Certificate of
Incorporation and the Amended and Restated By-Laws of the Company, 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 Plans, 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
General Corporation Law of the State of Delaware and the federal laws of the
United States of America.
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Breakaway Solutions, Inc.
April 21, 2000
Page 2
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 Plans, 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.
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 ACCOUNTANTS
Board of Directors
Breakaway Solutions, Inc.
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Breakaway Solutions, Inc. of our reports dated
February 7, 2000 except for paragraph five of Note 6, which is as of March 7,
2000, relating to the consolidated balance sheets of Breakaway Solutions,
Inc. as of December 31 1998 and 1999, and the related consolidated statements
of operations, stockholders' equity and cash flows for each of the years in
the three-year period ended December 31, 1999, and the related schedule,
which reports appear in the December 31, 1999, Annual Report on Form 10-K of
Breakaway Solutions, Inc.
/s/ KPMG LLP
Boston, Massachusetts
April 21, 2000
