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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 1, 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
SILKNET SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 02-0478949
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
SILKNET SOFTWARE, INC.
50 PHILLIPPE COTE STREET
MANCHESTER, NEW HAMPSHIRE 03101
(Address of Principal Executive Offices) (Zip Code)
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EMPLOYEE STOCK OPTION PLAN
1999 STOCK OPTION AND INCENTIVE PLAN
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
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JAMES C. WOOD
PRESIDENT & CHIEF EXECUTIVE OFFICER
SILKNET SOFTWARE, INC.
50 PHILLIPPE COTE STREET
MANCHESTER, NEW HAMPSHIRE 03101
(Name and Address of Agent For Service)
(603) 625-0070
(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
John Hession, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
Oliver Street Tower, 125 High Street
Boston, Massachusetts 02110
(617) 248-7000
IN ADDITION, PURSUANT TO RULE 416(c) UNDER THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT ALSO COVERS AN INDETERMINATE AMOUNT OF INTERESTS TO
BE OFFERED OR SOLD PURSUANT TO THE EMPLOYEE BENEFIT PLANS DESCRIBED HEREIN.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE(3)
- ------------------------------------ ---------- -------------- --------------- -------------------
<S> <C> <C> <C> <C>
EMPLOYEE STOCK OPTION PLAN
Common Stock (Par Value $.01 Per Share) 487,775 $ 0.02 (1) $ 9,755.50 $ 2.71
697,924 $ 1.00 (1) $ 697,924.00 $ 194.02
623,763 $ 1.75 (1) $ 1,091,585.25 $ 303.46
72,125 $ 5.50 (1) $ 396,687.50 $ 110.28
12,625 $ 7.32 (1) $ 92,415.00 $ 25.69
30,013 $11.00 (1) $ 330,143.00 $ 91.78
500 $24.81 (1) $ 12,405.00 $ 3.45
4,000 $25.50 (1) $ 102,000.00 $ 28.36
2,500 $29.38 (1) $ 73,450.00 $ 20.42
2,000 $33.00 (1) $ 66,000.00 $ 18.35
3,500 $34.50 (1) $ 120,750.00 $ 33.57
2,000 $34.81 (1) $ 69,620.00 $ 19.35
3,000 $35.56 (1) $ 106,680.00 $ 29.66
4,500 $41.56 (1) $ 187,020.00 $ 51.99
250 $46.38 (1) $ 11,595.00 $ 3.22
445,425 $82.34375 (2) $ 36,677,964.84 $10,196.47
1999 STOCK OPTION AND INCENTIVE PLAN
Common Stock (Par Value $.01 Per Share) 150,000 $ 9.00 (1) $ 1,350,000.00 $ 375.30
60,000 $11.00 (1) $ 660,000.00 $ 183.48
250 $24.00 (1) $ 6,000.00 $ 1.67
2,000 $25.00 (1) $ 50,000.00 $ 13.90
257,275 $25.50 (1) $ 6,560,512.50 $ 1,823.82
21,000 $31.50 (1) $ 661,500.00 $ 183.90
11,500 $32.20 (1) $ 370,300.00 $ 102.94
2,000 $33.13 (1) $ 66,260.00 $ 18.42
250 $33.88 (1) $ 8,470.00 $ 2.35
15,500 $34.38 (1) $ 532,890.00 $ 148.14
5,500 $34.63 (1) $ 190,465.00 $ 52.95
3,000 $35.38 (1) $ 106,140.00 $ 29.51
1,000 $35.75 (1) $ 35,750.00 $ 9.94
1,500 $37.31 (1) $ 55,965.00 $ 15.56
5,000 $37.63 (1) $ 188,150.00 $ 52.31
3,500 $38.69 (1) $ 135,415.00 $ 37.65
1,500 $38.94 (1) $ 58,410.00 $ 16.24
1,000 $39.50 (1) $ 39,500.00 $ 10.98
11,250 $40.50 (1) $ 455,625.00 $ 126.66
17,250 $42.13 (1) $ 726,742.50 $ 202.03
15,500 $44.88 (1) $ 695,640.00 $ 193.39
6,500 $45.50 (1) $ 295,750.00 $ 82.22
4,500 $46.13 (1) $ 207,585.00 $ 57.71
186,500 $49.25 (1) $ 9,185,125.00 $ 2,553.46
500 $85.75 (1) $ 42,875.00 $ 11.92
216,225 $82.34375 (2) $ 17,804,777.34 $ 4,949.73
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
1999 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Common Stock (Par Value $.01 Per Share) 40,000 $15.00 (1) $ 600,000.00 $ 166.80
10,000 $49.25 (1) $ 492,500.00 $ 136.92
300,000 $82.34375 (2) $ 24,703,125.00 $ 6,867.47
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TOTAL: 3,741,900 $106,331,467.40 $29,560.15
</TABLE>
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(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price
and the fee have been computed upon the basis of the price at which the
options may be exercised. The offering price per share set forth for
such shares is the exercise price per share at which such options are
exercisable.
(2) The price of $82.34375 per share, which is the average of the high and
low prices of the Common Stock of the Registrant reported on the Nasdaq
National Market on October 29, 1999, is set forth solely for purposes of
calculating the filing fee pursuant to Rule 457(c) and (h) and has been
used for those shares without a fixed exercise price.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended (the "Act").
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in this Item 1 will
be sent or given to employees, directors and others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in this Item 2 will
be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Commission and
the instructions to Form S-8, such documents are not being filed with the
Commission either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Silknet Software, Inc. (the "Company"
or the "Registrant") with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended June 30, 1999, filed pursuant to the Exchange Act,
which contain audited financial statements for the fiscal year
ended June 30, 1999.
(b) Registrant's Current Report on 8-K dated October 5, 1999 filed
pursuant to the Exchange Act.
(c) The section entitled "Description of Registrant's Securities
to be Registered" contained in the Registrant's Registration
Statement on Form 8-A, filed with the Commission pursuant to
Section 12(g) of the Exchange Act on March 3, 1999.
All documents subsequently filed with the Commission 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 securities
offered herein have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Company's Certificate of
Incorporation and by-laws, as amended, provide for indemnification of the
Company's directors and officers for liabilities and expenses that they may
incur in such capacities. In general, directors and officers are indemnified
with respect to actions taken in good faith in a manner reasonably believed to
be in, or not opposed to, the best interests of the Company and, with respect to
any criminal action or proceeding, actions that the indemnitee had no reasonable
cause to believe were unlawful. Reference is made to the Company's Certificate
of Incorporation and by-laws filed as Exhibits 3.01 and 3.02, respectively, to
the Company's Registration Statement on Form S-1, as amended (SEC File
No. 333-73295) (the "S-1 Registration Statement") and incorporated herein by
reference.
The Underwriting Agreement by and between the Company and Credit Suisse
First Boston Corporation, BancBoston Robertson Stephens, NationBanc Montgomery
Securities LLC and First Union Capital Markets Corp., as representatives of the
Underwriters named in Schedule A thereto, provides that the underwriters are
obligated, under certain circumstances, to indemnify directors, officers and
controlling persons of the Company against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
Reference is made to the form of Underwriting Agreement filed as Exhibit 1.01 to
the S-1 Registration Statement and incorporated herein by reference.
In addition, the Company maintains directors and officers liability
insurance for the benefit of its directors and certain of its officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
- ---------- ----------------------
4.1 Specimen Certificate for shares of the Registrant's Common
Stock (filed as Exhibit 4.01 to the S-1 Registration Statement
(SEC File 333-73295) and incorporated herein by reference).
4.2 Certificate of Incorporation of the Registrant (filed as
Exhibit 3.01 to the S-1 Registration Statement (SEC File
333-73295) and incorporated herein by reference).
4.3 By-Laws, as amended, of the Registrant (filed as Exhibit 3.02
to the S-1 Registration Statement (SEC File No. 333-73295) and
incorporated herein by reference).
4.4 Employee Stock Option Plan (filed as Exhibit 10.01 to the S-1
Registration Statement (SEC File No. 333-73295) and
incorporated herein by reference).
4.5 1999 Stock Option and Incentive Plan (filed as Exhibit 10.02
to the S-1 Registration Statement (SEC File No. 333-73295) and
incorporated herein by reference).
4.6 1999 Non-Employee Director Stock Option Plan (filed as Exhibit
10.03 to the S-1 Registration Statement (SEC File No.
333-73295) and incorporated herein by reference).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith).
5
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23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement).
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered
(if the total dollar value of securities offered
would not exceed that which was registered) and any
deviation from the low or high end of the estimated
maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table
in the effective 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 registration statement is on Form S-3, Form
S-9 or Form F-3, and 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
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 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
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
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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.
(c) 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
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 the City of Manchester, State of New Hampshire, on this 1st day
of November, 1999.
SILKNET SOFTWARE, INC.
By: /s/ James C. Wood
-------------------------------
James C. Wood
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Silknet Software, Inc.,
hereby severally constitute and appoint James C. Wood and Patrick J. Scannell,
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 in our names in the capacities
indicated below, any amendments to this Registration Statement on Form S-8
(including post-effective amendments), and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, and generally to do all things in our names and on our
behalf in our capacities as officers and directors to enable Silknet Software,
Inc., to comply with the provisions of the Securities Act of 1933, as amended,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and all amendments
thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
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<S> <C> <C>
/s/ James C. Wood President, Chief Executive Officer November 1, 1999
- ------------------------------ and Chairman of the Board
James C. Wood (Principal Executive Officer)
/s/ Patrick J. Scannell, Jr. Vice President, Chief Financial November 1, 1999
- ------------------------------ Officer, Treasurer, and Secretary
Patrick J. Scannell, Jr. (Principal Financial and Accounting
Officer)
/s/ Stanley Fung Director November 1, 1999
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Stanley Fung
/s/ Guy Bradley Director November 1, 1999
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Guy Bradley
/s/ Joo Hock Chua Director November 1, 1999
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Joo Hock Chua
/s/ Andrew Goldfarb Director November 1, 1999
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Andrew Goldfarb
/s/ Glen L. Urban Director November 1, 1999
- ------------------------------
Glen L. Urban
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Specimen Certificate for shares of the Registrant's Common
Stock (filed as Exhibit 4.01 to the S-1 Registration Statement
(SEC File 333-73295) and incorporated herein by reference).
4.2 Certificate of Incorporation of the Registrant (filed as
Exhibit 3.01 to the S-1 Registration Statement (SEC File
333-73295) and incorporated herein by reference).
4.3 By-Laws, as amended, of the Registrant (filed as Exhibit 3.02
to the S-1 Registration Statement (SEC File No. 333-73295) and
incorporated herein by reference).
4.4 Employee Stock Option Plan (filed as Exhibit 10.01 to the S-1
Registration Statement (SEC File No. 333-73295) and
incorporated herein by reference).
4.5 1999 Stock Option and Incentive Plan (filed as Exhibit 10.02
to the S-1 Registration Statement (SEC File No. 333-73295) and
incorporated herein by reference).
4.6 1999 Non-Employee Director Stock Option Plan (filed as Exhibit
10.03 to the S-1 Registration Statement (SEC File No.
333-73295) and incorporated herein by reference).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP (filed herewith).
23.1 Consent of PricewaterhouseCoopers LLP (filed herewith).
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement).
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EXHIBIT 5.1
November 1, 1999
Silknet Software, Inc.
50 Phillippe Cote Street
Manchester, New Hampshire 03101
Re: Registration Statement on Form S-8 Relating to each of the
Employee Stock Option Plan, the 1999 Stock Option and
Incentive Plan, and the 1999 Non-Employee Director Stock
Option Plan (collectively, the "Plans")
Dear Sir or Madam:
Reference is made to the above-captioned Registration Statement on Form
S-8 (the "Registration Statement") filed by Silknet Software, Inc. (the
"Company") on the date hereof with the Securities and Exchange Commission under
the Securities Act of 1933 relating to an aggregate of 3,741,900 shares of
Common Stock, par value $0.01 per share, of the Company issuable pursuant to the
Plans (the "Shares").
We have examined, are familiar with, and have relied as to factual
matters solely upon, copies of the Plans, the Company's Certificate of
Incorporation, the Company's By-Laws, as amended, the minute books and stock
records of the Company, and originals or certified copies of such other
certificates, documents, records and materials as we have deemed necessary for
the purpose of rendering this opinion.
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when issued and paid for in accordance with the terms
of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ TESTA HURWITZ & THIBEAULT, LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated July 19, 1999 relating to
the financial statements of Silknet Software, Inc. which appears in Silknet
Software, Inc.'s Annual Report on Form 10-K for the year ended June 30, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
November 1, 1999
