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As filed with the Securities and Exchange Commission on May 5, 1999
Registration No. 333-
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)
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<S> <C>
DELAWARE 02-0478949
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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50 Phillippe Cote Street
MANCHESTER, NEW HAMPSHIRE 03101
(Address of principal executive offices) (Zip Code)
1999 Employee Stock Purchase Plan
(Full title of the plans)
--------------------------
James C. Wood
President, Chief Executive Officer and Chairman of the Board of Directors
Silknet Software, Inc.
50 Phillippe Cote Street
Manchester, New Hampshire
(603) 625-0070
(Name, address including zip code and telephone number,
including area code, of agent for service)
--------------------------
Copy to:
John Hession, Esq.
Testa, Hurwitz & Thibeault, LLP
Oliver Street Tower
125 High Street
Boston, MA 02110
(617) 248-7000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered Share (1) Price Fee
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1999 EMPLOYEE STOCK PURCHASE PLAN
Common Stock (Par Value $0.01 Per Share) 350,000 $15.00 $5,250,000 $1,459.50
TOTAL: 350,000 $15.00 $5,250,000 $1,459.50
- -----------------------------------------------------------------------------------------------------------
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(1) The price of $15.00 per share, which is the offering price negotiated on
May 5, 1999 between the Registrant and the underwriters in connection with
the initial public offering of the Common Stock of the Registrant and to
paid by the underwriters on May 10, 1999, is set forth solely for purposes
of calculating the filing fee pursuant to Rule 457(h) and has been used
only for those shares without a fixed exercise price.
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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 the persons specified by Rule 428(b)(1) of the Securities
Act. 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 of
the Securities Act.
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 the persons specified by Rule 428(b)(1) of the Securities
Act. 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 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated by
reference in this Registration Statement:
(a) Registrant's Prospectus dated May 3, 1999, as filed on May 5,
1999 pursuant to Rule 424(b)(1) of the Securities Act of 1933,
as amended (the "Securities Act"), in Registration Statement
No. 333-73295 on Form S-1, as amended (the "Form S-1");
(b) The section entitled "Description of Registrant's Securities
to be Registered" contained in the Registrant's Registration
Statement on Form 8-A, filed pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on March 3, 1999, and incorporating by reference the
information contained in the Form S-1.
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-
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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.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law and the Registrant's Certificate
of Incorporation and by-laws, as amended, provide for indemnification of the
Registrant'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 Registrant 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 Registrant's
Certificate of Incorporation and By-laws filed as Exhibits 3.01 and 3.02,
respectively, to the Registrant's Registration Statement on Form S-1 (File No.
333-73295) and incorporated herein by reference.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
Exhibit 4.1 Specimen certificate representing the Common
Stock of the Registrant (filed as Exhibit 4.01 to
Registrant's Registration Statement on Form S-1 (File
No. 333-73295) and incorporated herein by reference).
Exhibit 4.2 Form of Certificate of Incorporation of the
Registrant (filed as Exhibit 3.01 to Registrant's
Registration Statement on Form S-1 (File No.
333-73295) and incorporated
herein by reference).
Exhibit 4.3 By-Laws, as amended, of the Registrant (filed as
Exhibit 3.02 to Registrant's Registration Statement
on Form S-1 (File No. 333-73295) and incorporated
herein by reference).
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Exhibit 4.4 1999 Employee Stock Purchase Plan, as amended
(filed as Exhibit 10.04 to Registrant's Registration
Statement on Form S-1 (File No. 333-73295) and
incorporated herein by reference).
Exhibit 5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
Exhibit 23.1 Consent of PricewaterhouseCoopers LLP.
Exhibit 23.2 Consent of Testa, Hurwitz & Thibeault, LLP
(included in Exhibit 5.1).
Exhibit 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;
and
(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.
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(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 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, Silknet Software, Inc., 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, Manchester, New Hampshire, on this 5th
day of May, 1999.
SILKNET SOFTWARE, INC.
By: /S/ James C. Wood
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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 by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE(S) DATE
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/s/ James C. Wood President, Chief Executive Officer, May 5, 1999
- -------------------------------- and Chairman of the Board (Principal
James C. Wood Executive Officer)
/s/ Patrick J. Scannell, Jr. Vice President, Chief Financial Officer, May 5, 1999
- -------------------------------- Treasurer and Secretary (Principal
Patrick J. Scannell, Jr. Financial and Accounting Officer)
/s/ Stanley Fung Director May 5, 1999
- --------------------------------
Stanley Fung
/s/ Guy Bradley Director May 5, 1999
- --------------------------------
Guy Bradley
/s/ John Doggett Director May 5, 1999
- --------------------------------
John Doggett
/s/ Joo Hock Chua Director May 5, 1999
- --------------------------------
Joo Hock Chua
/s/ Andrew Goldfarb Director May 5, 1999
- --------------------------------
Andrew Goldfarb
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION OF EXHIBIT
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4.1 Specimen certificate representing the Common Stock of
the Registrant (filed as Exhibit 4.01 to Registrant's
Registration Statement on Form S-1 (File No. 333-73295)
and incorporated herein by reference).
4.2 Form of Certificate of Incorporation of the Registrant
(filed as Exhibit 3.01 to Registrant's Registration
Statement on Form S-1 (File No. 333-73295) and
incorporated herein by reference).
4.3 By-Laws, as amended, of the Registrant (filed as
Exhibit 3.02 to Registrant's Registration Statement on
Form S-1 (File No. 333-73295) and incorporated herein by
reference).
4.4 1999 Employee Stock Purchase Plan, as amended (filed as
Exhibit 10.04 to Registrant's Registration Statement on
Form S-1 (File No. 333-73295) and incorporated herein by
reference).
5.1 Opinion of Testa, Hurwitz & Thibeault, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Testa, Hurwitz & Thibeault, LLP (contained 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
May 5, 1999
Silknet Software, Inc.
The Gateway Building
50 Phillippe Cote Street
Manchester, New Hampshire 03101
Re: Registration Statement on Form S-8 Relating to the 1999
Employee Stock Purchase Plan (the "Plan")
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 350,000 shares of Common
Stock, par value $0.01 per share, of the Company issuable pursuant to the Plan
(the "Shares").
We have examined, and are familiar with, and have relied as to factual
matters solely upon, a copy of the Plan, the Certificate of Incorporation and
the By-Laws, as amended, of the Company, the minute books and stock records of
the Company and originals of such other documents, certificates and proceedings
as we have deemed necessary for the purpose of rendering this opinion.
Based on 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 ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 9, 1999 relating to the
financial statements, which appears in Silknet Software, Inc.'s Registration
Statement on Form S-1, as amended (File No. 333-73295).
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
May 5, 1999
