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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 3, 1999
REGISTRATION NO. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
registration statement
under
the securities act of 1933
--------------------------
TELEMATE.NET SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
GEORGIA 58-1656726
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
4250 PERIMETER PARK SOUTH, SUITE 200
ATLANTA, GA 30341
(Address of Principal Executive Offices, Including Zip Code)
------------------------------
Telemate Software, Inc. Stock Incentive Plan;
Telemate.Net Software, Inc. 1999 Stock Incentive Plan
(Full title of the Plans)
------------------------------
COPY TO:
RICHARD L. MAURO LAUREN Z. BURNHAM, ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER MORRIS, MANNING & MARTIN, L.L.P.
TELEMATE.NET SOFTWARE, INC. 1600 ATLANTA FINANCIAL CENTER
4250 PERIMETER PARK SOUTH, SUITE 200 3343 PEACHTREE ROAD, N.E.
ATLANTA, GEORGIA 30341 ATLANTA, GEORGIA 30326
(770) 936-3700 (404) 233-7000
(Name and Address and Telephone Number, Including Area Code, of Agent
for Service.)
--------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(1) Per Share(2) Price(3) Registration Fee
------------------- ------------- ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value per share 4,712,614 $15.375 $25,091,003 $6,625
</TABLE>
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(1) Represents 3,712,614 shares reserved for issuance by Registrant under the
Telemate Software, Inc. Stock Incentive Plan and 1,000,000 shares reserved
for issuance by Registrant under the Telemate.Net Software, Inc. 1999 Stock
Incentive Plan.
(2) Estimated in accordance with Rule 457(h) of the Securities Act
of 1933, based on the high and low prices of the common stock offered
hereby on the Nasdaq National Market on December 1, 1999.
(3) The proposed maximum aggregate offering price of the Common Stock offered
hereunder is based on (i) 3,361,770 shares subject to options granted under
the Telemate Software, Inc. Stock Incentive Plan at a weighted average
exercise price of $2.02 per share; (ii) 600,000 shares subject to options
granted under the Telemate.Net Software, Inc. 1999 Stock Incentive Plan at
a weighted average exercise price of $11.26 per share; and (iii) 750,844
shares not subject to outstanding options but reserved for issuance at an
assumed exercise price of $15.375 per share.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees and/or directors of Telemate.Net Software, Inc. (the
"Company") as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with the instructions of Part I of
Form S-8, these documents will not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) 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
herein by reference:
(a) the Company's Prospectus, filed with the Commission on
September 29, 1999 pursuant to Rule 424(b) under the
Securities Act, which contains audited financial statements
for the Company's latest fiscal year (Registration No.
333-81443);
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999 (Registration No. 000-26735); and
(c) the description of the Company's common stock, $.01 par value
per share ("Common Stock") contained in the Company's Registration Statement on
Form 8-A, filed with the Commission on July 16, 1999 (Registration No.
000-26735).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering of the shares of Common
Stock offered hereby shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof.
The Company hereby undertakes to provide without charge to each person
to whom this Prospectus has been delivered, upon the written or oral request of
any such person, a copy of any and all of the foregoing documents incorporated
herein by reference (other than exhibits to such documents which are not
specifically incorporated by reference into the information that this Prospectus
incorporates). Written or telephone requests should be directed to Investor
Relations Department, Telemate.Net Software, Inc., 4250 Perimeter Park South,
Suite 200, Atlanta, Georgia 30341; (770) 936-3700.
ITEM 4. DESCRIPTION OF SECURITIES.
Because the securities to be awarded pursuant to this registration
statement are registered under Section 12 of the Securities Exchange Act of
1934, this item is inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock were passed
upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia. Members of Morris,
Manning & Martin, L.L.P., hold an aggregate of 4,340 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Articles of Incorporation provide
that the liability of the Company's directors for monetary damages shall be
eliminated to the fullest extent permissible under the Georgia Business
Corporation Code (the "GBCC") and that the Company may indemnify its officers,
employees and agents to the fullest extent permitted under the GBCC.
The Company's Amended and Restated Bylaws provide that the Company must
indemnify its directors against all liabilities to the fullest extent permitted
under the GBCC and that it must advance all reasonable
2
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expenses incurred in a proceeding in which the director was either a party or a
witness because he or she was a director.
The GBCC provides that, in general, a corporation may indemnify an
individual who is or was a party to any proceeding (other than action by, or in
the right of, such corporation) by reason of the fact that he or she is or was a
director of the corporation, against liability incurred in connection with such
proceeding, including any appeal thereof, provided certain standards are met,
including that such officer or director acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation, and provided further that, with respect to any criminal action
or proceeding, the officer or director had no reasonable cause to believe his or
her conduct was unlawful. In the case of proceedings by or in the right of the
corporation, the GBCC provides that, in general, a company may indemnify an
individual who was or is a party to any such proceeding by reason of the fact
that he or she is or was a director of the corporation against reasonable
expenses incurred in connection with such proceeding, if it is determined that
the director has met the relevant standard of conduct. To the extent that any
directors are successful on the merits or in the defense of any of the
proceedings described above, the GBCC provides that a corporation is required to
indemnify such officers or directors against reasonable expenses incurred in
connection therewith. The GBCC further provides, in general, for the advancement
of reasonable expenses incurred by a director who is a party to a proceeding if
the director furnishes the corporation (1) a written affirmation of his good
faith belief that he or she has met the standard of conduct under the GBCC or
that the proceeding involves conduct for which liability has been eliminated
under the corporation's articles of incorporation; and (2) a written undertaking
to repay any advances if it is ultimately determined that he or she is not
entitled to indemnification. In addition, the GBCC provides for the
indemnification of officers, employees and agents in certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
As no restricted securities are to be reoffered or resold pursuant to
this Registration Statement, this item is inapplicable.
ITEM 8. EXHIBITS.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
3.1 The Company's Amended and Restated
Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, filed
with the Commission on June 24, 1999,
Registration Number 333-81443).
3.2 The Company's Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.3
to the Company's Registration Statement on
Form S-1, filed with the Commission on
June 24, 1999, Registration Number
333-81443).
5.1 Opinion of Morris, Manning & Martin, L.L.P.,
as to the legality of the securities being
registered.
10.1 Telemate Software, Inc. Stock Incentive
Plan (incorporated by reference to Exhibit
10.10 to the Company's Registration
Statement on Form S-1, filed with the
Commission on June 24, 1999, Registration
Number 333-81443).
10.2 Amendment to the Telemate Software, Inc.
Stock Incentive Plan (incorporated by
reference to Exhibit 10.14 to the
Company's Registration Statement on Form
S-1, filed with the Commission on June 24,
1999, Registration Number 333-81443).
10.3 Telemate.Net Software, Inc. 1999 Stock
Incentive Plan (incorporated by reference to
Exhibit 10.13 to the Company's Registration
Statement on Form S-1, filed with the Commission
on June 24, 1999, Registration Number 333-81443).
</TABLE>
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<TABLE>
<S> <C>
23.1 Consent of KPMG LLP
23.2 Consent of Morris, Manning & Martin, L.L.P.
(included in Exhibit 5.1).
</TABLE>
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;
(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;
(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 or Form S-8, 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 Section 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 the 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 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 undersigned
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 Atlanta, State of Georgia, on this the 3rd day of
December, 1999.
Telemate.Net Software, Inc.
By: /s/ Richard L. Mauro
-------------------------------------
RICHARD L. MAURO
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated:
<TABLE>
<S> <C> <C>
/s/ Richard L. Mauro President, Chief Executive Officer December 3, 1999
- ------------------------------------ and Director
RICHARD L. MAURO (Principal Executive Officer)
/s/ Richard J. Post Chief Financial Officer (Principal December 3, 1999
- ------------------------------------ Financial and Accounting Officer)
RICHARD J. POST
Chairman of the Board
- ------------------------------------
DAVID H. COUCHMAN
/s/ Murali Anantharaman Director December 3, 1999
- ------------------------------------
MURALI ANANTHARAMAN
/s/ James C. Davis Director December 3, 1999
- ------------------------------------
JAMES C. DAVIS
Director
- ------------------------------------
J. LAWRENCE BRADNER
</TABLE>
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EXHIBIT INDEX
EXHIBITS INCORPORATED HEREIN BY REFERENCE
<TABLE>
<CAPTION>
<S> <C>
Designation of Exhibit. Description of Exhibit
----------------------- ----------------------
3.1 The Company's Amended and Restated
Articles of Incorporation (incorporated by
reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1, filed
with the Commission on June 24, 1999,
Registration Number 333-81443).
3.2 The Company's Amended and Restated Bylaws
(incorporated by reference to Exhibit 3.3
to the Company's Registration Statement on
Form S-1, filed with the Commission on
June 24, 1999, Registration Number
333-81443).
10.1 Telemate Software, Inc. Stock Incentive
Plan (incorporated by reference to Exhibit
10.10 to the Company's Registration
Statement on Form S-1, filed with the
Commission on June 24, 1999, Registration
Number 333-81443).
10.2 Amendment to the Telemate Software, Inc.
Stock Incentive Plan (incorporated by
reference to Exhibit 10.14 to the
Company's Registration Statement on Form
S-1, filed with the Commission on June 24,
1999, Registration Number 333-81443).
10.3 Telemate.Net Software, Inc. 1999 Stock Incentive
Plan (incorporated by reference to Exhibit 10.13
to the Company's Registration Statement on Form S-1,
filed with the Commission on June 24, 1999, Registration
Number 333-81443).
</TABLE>
EXHIBITS FILED HEREWITH
<TABLE>
<CAPTION>
Designation of Exhibit. Description of Exhibit
----------------------- ----------------------
<S> <C>
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to the legality of the
securities being registered.
23.1 Consent of KPMG LLP
23.2 Consent of Morris, Manning & Martin, L.L.P. (included in Exhibit 5.1).
</TABLE>
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EXHIBIT 5.1
[Letterhead of Morris, Manning & Martin, L.L.P.]
December 3, 1999
Telemate.Net Software, Inc.
4250 Perimeter Park South, Suite 200
Atlanta, Georgia 30341
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Telemate.Net Software, Inc., a Georgia
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-8, of a proposed offering of 4,712,614 shares of the Company's common stock,
$0.01 par value per share (the "Shares"), including (i) 3,712,614 Shares
issuable pursuant to the Telemate Software, Inc. Stock Incentive Plan and (ii)
1,000,000 Shares issuable pursuant to the Telemate.Net Software, Inc. 1999 Stock
Incentive Plan, (collectively, the "Plans").
We have examined and are familiar with the originals or copies
certified or otherwise identified to our satisfaction of such documents,
corporate records and other instruments relating to the incorporation of the
Company and to the authorization and issuance of Shares under the Plans as would
be necessary and advisable for purposes of rendering this opinion. Based upon
and subject to the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued as contemplated by the Plans, will be validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this Opinion as Exhibit 5.1 to the
Company's registration statement on Form S-8.
Very truly yours,
/s/ Morris, Manning & Martin, L.L.P.
------------------------------------
MORRIS, MANNING & MARTIN, L.L.P.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report incorporated herein by reference.
/s/ KPMG LLP
Atlanta, Georgia
December 2, 1999
