<PAGE>
As filed with the Securities and Exchange Commission on September 21, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
MISSION CRITICAL SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 76-0509513
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
13939 Northwest Freeway
Houston, TX 77040
(713) 548-1700
(Address, including zip code, of Registrant's principal executive offices)
__________________
1997 Stock Plan (as amended May 21, 1999)
1999 Director Option Plan
1999 Employee Stock Purchase Plan
(Full title of the plan)
__________________
STEPHEN E. ODOM
Chief Financial Officer
13939 Northwest Freeway
Houston, TX 77040
(713) 548-1700
(Name, address, and telephone number, including area code, of agent for service)
__________________
Copies to:
PAUL R. TOBIAS, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
8911 Capital of Texas Highway, Suite 3350
Austin, TX 78759
(512) 338-5400
__________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Proposed Maximum
to be Registered Registered Offering Price Aggregate Offering Amount of
Per Share Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 per share par value: To 7,646,135 shares $ 41.22 (2) $ 315,173,685 (2) $ 87,618.00
be issued under the 1997 Stock Plan (as
amended May 21, 1999)
(1)..........................................
====================================================================================================================================
Common Stock, $0.001 per share par value: To 250,000 shares $ 41.22 (2) $ 10,305,000 (2) $ 2,865.00
be issued under the 1999 Director Option
Plan (1).....................................
====================================================================================================================================
Common Stock, $0.001 per share par value: To 600,000 shares $ 41.22 (2) $ 24,732,000 (2) $ 6,876.00
be issued under the 1999 Employee Stock
Purchase Plan (1)............................
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 1997 Stock Plan
(as amended May 21, 1999), 1999 Director Option Plan, and 1999 Employee
Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction affected without the
receipt of consideration that increases the number of the Registrant's
outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee based upon the average of the high and
low prices of the Common Stock as reported on the Nasdaq National Market
on September 15, 1999.
================================================================================
<PAGE>
PART II: INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
Mission Critical Software, Inc. hereby incorporates by reference in this
registration statement the following documents:
1. The Registrant's prospectus filed pursuant to Rule 424(b) on or
about August 5, 1999; and
2. The description of the common stock contained in the Registrant's
Registration Statement on Form 8-A (Registration No. 000-26205)
filed on August 4, 1999 under the Securities Exchange Act of 1934,
as amended, including any amendment or report subsequently filed by
the Registrant for the purpose of updating that description.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby 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. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Section 145 of the Delaware General Corporation Law authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended. The Registrant's
Certificate of Incorporation and Bylaws provide that the Registrant shall
indemnify its directors, officers, employees and other agents to the fullest
extent permitted by Delaware law, including circumstances in which
indemnification is otherwise discretionary under Delaware law.
The Registrant has entered into indemnity agreements with certain
directors and executive officers. These agreements, among other things,
indemnify the directors and executive officers for certain expenses (including
attorneys' fees), judgments, fines, and settlement payments incurred by such
persons in any action, including any action by or in the right of the
Registrant, in connection with the good faith performance of their duties as a
director or officer. The indemnification agreements also provide for the advance
payment by the Registrant of defense expenses incurred by the director or
officer; however, the affected director or officer must undertake to repay such
amounts advanced if it is ultimately determined that such director or officer is
not entitled to be indemnified.
II-1
<PAGE>
Item 7. Exemption From Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
Exhibit
Number Documents
----------------------------------------------------------------------
4.1* Mission Critical Software, Inc. 1997 Stock Plan (as amended
May 21, 1999) and form of agreement thereunder
4.2* Mission Critical Software, Inc. 1999 Employee Stock Purchase
Plan and form of agreement thereunder
4.3* Mission Critical Software, Inc. 1999 Director Option Plan and
form of agreement thereunder
5.1 Opinion of counsel as to legality of securities being
registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page II-5)
* Incorporated by reference to the Exhibits filed with Mission Critical
Software, Inc.'s Registration statement on Form S-1 (Registration No.
333-79501) as declared effective by the SEC on August 4, 1999.
Item 9. Undertakings
------------
(a) Rule 415 offering 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 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 of 1933, as amended, 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.
II-2
<PAGE>
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
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.
(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.
II-3
<PAGE>
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 Houston, State of Texas, on this 20th day of
September, 1999.
MISSION CRITICAL SOFTWARE, INC.
By: /s/ Michael S. Bennett
----------------------
Michael S. Bennett
President and
Chief Executive Officer
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael S. Bennett and Stephen E. Odom,
and each of them, as his or her attorney-in-fact, with full power of
substitution in each, for him or her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------------- ------------------------------------- -------------------
<S> <C> <C>
/s/ Michael S. Bennett President, Chief Executive Officer and September 20, 1999
- ----------------------------------------- Director (Principal Executive Officer)
Michael S. Bennett
/s/ Stephen E. Odom Chief Operating Officer, Chief Financial September 20, 1999
- ----------------------------------------- Officer, Treasurer and Secretary
Stephen E. Odom (Principal Financial and Accounting
Officer)
/s/ Thomas P. Bernhardt Chief Technology Officer and Director September 20, 1999
- -----------------------------------------
Thomas P. Bernhardt
/s/ Douglas L. Ayer Director September 20, 1999
- -----------------------------------------
Douglas L. Ayer
/s/ Michael J. Maples Director September 20, 1999
- -----------------------------------------
Michael J. Maples
/s/ John J. Moores Director September 20, 1999
- -----------------------------------------
John J. Moores
/s/ Scott D. Sandell Director September 20, 1999
- -----------------------------------------
Scott D. Sandell
/s/ John D. Thornton Director September 20, 1999
- -----------------------------------------
John D. Thornton
</TABLE>
II-5
<PAGE>
MISSION CRITICAL SOFTWARE, INC.
REGISTRATION STATEMENT ON FORM S-8
----------------------------------
INDEX TO EXHIBITS
Exhibit Documents
Number
4.1* Mission Critical Software, Inc. 1997 Stock Plan (as amended May 21,
1999) and form of agreement thereunder
4.2* Mission Critical Software, Inc. 1999 Employee Stock Purchase Plan
and form of agreement thereunder
4.3* Mission Critical Software, Inc. 1999 Director Option Plan and form
of agreement thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page II-5)
* Incorporated by reference to the Exhibits filed with Mission Critical
Software, Inc.'s Registration statement on Form S-1 (Registration No. 333-
79501) as declared effective by the SEC on August 4, 1999.
II-6
<PAGE>
Exhibit 5.1
-----------
Wilson Sonsini Goodrich & Rosati
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94034-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
September 20, 1999
Mission Critical Software, Inc.
13939 Northwest Freeway
Houston, Texas 77040
Re: Registration Statement on Form S-8
----------------------------------
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about September 21, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 8,496,135 shares of your
Common Stock (the "Shares") under your 1997 Stock Plan (as amended May 21,
1999), 1999 Director Option Plan and 1999 Employee Stock Purchase Plan
(collectively, the "Option Programs"). As your counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Option Programs.
It is our opinion that, when issued and sold in the manner described in the
Option Programs and pursuant to the agreements which accompany each grant under
the Option Programs, the Shares will be legally and validly issued, fully-paid
and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
Exhibit 23.2
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1997 Stock Plan (as amended May 21, 1999), 1999 Director
Option Plan, and 1999 Employee Stock Purchase Plan, of our report dated July 7,
1999, with respect to the financial statements of Mission Critical Software,
Inc. included in its Registration Statement (Form S-1 No. 333-79501), effective
with the Securities and Exchange Commission on August 4, 1999.
/s/ Ernst & Young LLP
Ernst & Young LLP
Austin, Texas
September 17, 1999
