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As filed with the Securities and Exchange Commission on November 20, 2000
Registration No. 333-44926
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
POST-EFFECTIVE AMENDMENT NO. 1 ON
FORM S-8
TO FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
__________________
OPENWAVE SYSTEMS INC.
(Exact Name of Registrant as Specified in Its Charter)
__________________
Delaware 94-3219054
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
800 Chesapeake Drive
Redwood City, California 94063
(650) 562-0200
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Principal Executive Offices)
Software.com, Inc. 1995 Stock Plan
Software.com, Inc. 2000 Nonstatutory Stock Option Plan
Software.com, Inc. 1999 Employee Stock Purchase Plan
At Mobile.com, Inc. Amended and Restated 1997 Stock Option Plan
bCandid Corporation 1999 Equity Incentive Plan
Mobility.Net Corporation 1999 Stock Option Plan
Options under Stock Option Agreements
(Full Titles of the Plans)
Donald J. Listwin
President and Chief Executive Officer
Openwave Systems Inc.
800 Chesapeake Drive
Redwood City, California 94063
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy To:
Kenton J. King, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Ste. 220
Palo Alto, California 94301
(650) 470-4500
__________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Amount to Proposed Proposed
be Maximum Maximum Amount of
Title of Securities to be Registered Offering Price Aggregate Registration
Registered (1) Per Share (2) Offering Price (2) Fee (2)
---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Software.com, Inc. 6,661,302 (2) (2) (2)
1995 Stock Plan
Common Stock,
par value $0.001 per share
--------------------------------------------------------------------------------------------------------
Software.com, Inc. 3,258,214 (2) (2) (2)
2000 Nonstatutory Stock Option Plan
Common Stock,
par value $0.001 per share
--------------------------------------------------------------------------------------------------------
Software.com, Inc. 1,060,060 (2) (2) (2)
1999 Employee Stock Purchase Plan
Common Stock,
par value $0.001 per share
--------------------------------------------------------------------------------------------------------
At Mobile.com, Inc. 409,808 (2) (2) (2)
Amended and Restated 1997 Stock
Option Plan
Common Stock,
par value $0.001 per share
--------------------------------------------------------------------------------------------------------
bCandid Corporation 64,526 (2) (2) (2)
1999 Equity Incentive Plan
Common Stock,
par value $0.001 per share
--------------------------------------------------------------------------------------------------------
Mobility.Net Corporation 15,400 (2) (2) (2)
1999 Stock Option Plan
Common Stock,
par value $0.001 per share
--------------------------------------------------------------------------------------------------------
Stock Option Agreements, dated 1,050,851 (2) (2) (2)
September 25, 1998 and November 20,
1998, between Software.com, Inc. and
John MacFarlane.
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</TABLE>
(1) These shares were originally registered on the Registration Statement on
Form S-4 to which this amendment relates.
(2) Not applicable. All filing fees payable in connection with the registration
of these securities were paid in connection with the registration of
94,506,060 shares of the Registrant's common stock pursuant to a
Registration Statement on Form S-4 (No. 333-44926) initially filed with the
Securities and Exchange Commission on August 31, 2000.
__________________
In addition pursuant to pursuant to Rule 416(c) under the Securities Act,
this registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan(s) described herein.
The registration statement will become effective upon filing in accordance
with Rule 462(a) under the Securities Act.
<PAGE>
INTRODUCTORY STATEMENT
Openwave Systems Inc. hereby amends its Registration Statement on Form S-4
(No. 333-44926) (the "Form S-4") by filing this Post-Effective Amendment No. 1
on Form S-8 (the "Post-Effective Amendment") relating to the sale of up to
12,520,161 shares of common stock, par value $0.001 per share, of the
Registrant ("Registrant Common Stock") issuable upon the exercise of stock
options granted under the Software.com, Inc. 1999 Stock Plan, Software.com, Inc.
2000 Nonstatutory Stock Option Plan, Software.com, Inc. 1999 Employee Stock
Purchase Plan, At Mobile.com Corporation Amended and Restated 1997 Stock Option
Plan, bCandid Corporation 1999 Equity Incentive Plan, Mobility.Net Corporation
1999 Stock Option Plan, Stock Option Agreement, between Software.com, Inc. and
John MacFarlane and Stock Option Agreement, between Software.com, Inc. and John
MacFarlane (collectively, the "Plans").
The designation of the Post-Effective Amendment as Registration No.
333-44926 denotes that the Post-Effective Amendment relates only to the shares
of Registrant Common Stock issuable on the exercise of stock options under the
Plan and that this is the first Post-Effective Amendment to the Form S-4 filed
with respect to such shares.
PART I
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to employees as specified by Rule 428(b)(1)
under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission requires us to "incorporate by
reference" certain of our publicly-filed documents into this prospectus, which
means that information included in those documents is considered part of the
prospectus. Information that we file with the SEC after the effective date of
this prospectus will automatically update and supersede this information. We
incorporate by reference the documents listed below and future filings made with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended until we terminate the effectiveness of this registration
statement.
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The following documents filed with the SEC are hereby incorporated by
reference:
(a) Our Annual Report on Form 10-K405 filed with the SEC on August 31,
2000 (No. 000-25687).
(b) Our Quarterly Report on Form 10-Q for the three months ended
September 30, 2000 filed with the SEC on November 14, 2000.
(c) Our Current Report on Form 8-K filed with the SEC on November 3,
2000, and our Current Report on Form 8-K filed with the SEC on August 17, 2000.
(d) The descriptions of our Common Stock contained in our Registration
Statement on Form 8-A12G filed with the SEC on April 1, 1999 (No. 333-75219) and
our Registration Statement on Form 8-A12B filed with the SEC on August 17, 2000.
Item 4. Description of the Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Our Amended and Restated Certificate of Incorporation reduces the liability
of a director to the corporation or its stockholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. Our Amended and Restated By-laws further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, we have entered into
indemnification agreements with our officers and directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Index to Exhibits.
Item 9. Undertakings
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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;
(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 SEC 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;
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 herein, 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.
4. 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 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.
5. 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 SEC 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
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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 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 Redwood City, State of California, on November 17, 2000.
By: /s/ Alan Black
_________________________________________
Alan Black
Senior Vice President, Corporate Affairs,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 17, 2000.
SIGNATURE TITLE
--------- -----
/s/ Donald J. Listwin
______________________________
Donald J. Listwin President, Chief Executive Officer and Director
(principal executive officer)
/s/ Alain Rossmann
______________________________
Alain Rossmann Chairman of the Board, Executive Vice
President, Secretary and Director
/s/ Alan Black
______________________________
Alan Black Senior Vice President, Corporate Affairs, Chief
Financial Officer and Treasurer
(principal financial and accounting officer)
/s/ Roger Evans
______________________________
Roger Evans Director
/s/ John MacFarlane
______________________________
John MacFarlane Executive Vice President and Director
/s/ Andrew Verhalen
______________________________
Andrew Verhalen Director
/s/ Bernard Puckett
______________________________
Bernard Puckett Director
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EXHIBIT INDEX
Exhibit
Number
5.1* Opinion of Skadden, Arps, Slate, Meagher and Flom LLP
23.1* Consent of Skadden, Arps, Slate, Meagher and Flom LLP
(included in Exhibit 5.1)
23.2* Consent of KPMG LLP, independent auditors, with respect to Phone.com,
Inc.
23.3* Consent of Ernst & Young, LLP, independent auditors, with respect to
Software.com, Inc., Telarc, Inc. and bCandid Corporation.
23.4* Consent of PricewaterhouseCoopers, independent auditors, with respect to
the WAP business of APiON.
23.5* Consent of Ernst & Young LLP, independent auditors, with respect to
AtMotion, Inc.
23.6* Consent of Ernst & Young, independent auditors, with respect to Paragon
Software (Holdings) Limited.
23.7* Consent of Ernst & Young LLP, independent auditors, with respect to
Onebox.com, Inc.
23.8* Consent of KPMG LLP, independent auditors, with respect to Highwind
Software, Inc.
24.1* Power of Attorney
________________________
* Filed herewith.
