<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 24, 2000
REGISTRATION NO.___________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
WITNESS SYSTEMS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 23-2518693
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1105 SANCTUARY PARKWAY
ALPHARETTA, GEORGIA 30004
(Address of Principal Executive Offices, Including Zip Code)
------------------------------
WITNESS SYSTEMS, INC. AMENDED AND RESTATED STOCK INCENTIVE PLAN
WITNESS SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
------------------------------
<TABLE>
<S> <C>
COPY TO:
DAVID B. GOULD JEFFREY L. SCHULTE, ESQ.
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER MORRIS, MANNING & MARTIN, L.L.P.
WITNESS SYSTEMS, INC. 1600 ATLANTA FINANCIAL CENTER
1105 SANCTUARY PARKWAY 3343 PEACHTREE ROAD, N.E.
ALPHARETTA, GEORGIA 30004 ATLANTA, GEORGIA 30326
(770) 754-1900 (404) 233-7000
</TABLE>
(Name and Address and Telephone Number, Including Area Code,
of Agent for Service.)
--------------------------------
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered (1) Per Share Price (2) Registration Fee (3)
- -------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value 6,530,946 $33.56 $135,722,396 $35,831.00
per share
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</TABLE>
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(1) Represents (i) 5,540,946 shares of our common stock reserved for issuance
under the Witness Systems, Inc. Amended and Restated Stock Incentive Plan
and (ii) 990,000 shares of our common stock reserved for issuance under the
Witness Systems, Inc. Employee Stock Purchase Plan.
(2) The proposed maximum aggregate offering price of the Common Stock offered
hereunder is based on (i) 2,709,046 shares subject to options granted under
the Witness Systems, Inc. Amended and Restated Stock Incentive Plan at a
weighted average exercise price of $2.75 per share; and (ii) 3,821,900
shares not subject to outstanding options but reserved for issuance under
the Witness Systems, Inc. Amended and Restated Stock Incentive Plan and the
Witness Systems, Inc. Employee Stock Purchase Plan at an assumed exercise
price of $33.56 per share.
(3) Estimated pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee on the
basis of (i) the weighted average exercise price of $2.75 as described in
Note 2 above and (ii) the average of the high and low sales prices of our
common stock on March 22, 2000.
<PAGE> 2
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 Witness Systems, 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 February 10,
2000 pursuant to Rule 424 (b) under the Securities Act, which contains audited
consolidated financial statements for the Company as of December 31, 1998, 1997
and 1996, and for the nine months ended September 30, 1999 (Registration No.
333-91383); and
(b) the description of the Company's common stock, $0.01 par value per
share ("Common Stock") contained in the Company's Registration Statement on Form
8-A, filed with the Commission on February 4, 2000 (Registration No. 000-29335).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Securities Exchange Act of 1934, as amended, (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, Witness Systems, Inc., 1105 Sanctuary Parkway, Atlanta,
Georgia 30004, telephone number (770) 754-1900.
ITEM 4. DESCRIPTION OF SECURITIES.
Because the securities to be awarded pursuant to this registration
statement are either (i) registered under Section 12 of the Exchange Act or (ii)
plan interests, this item is inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Legal matters in connection with the shares of Common Stock offered
hereby were passed upon by Morris, Manning & Martin, L.L.P., Atlanta, Georgia.
Members of Morris, Manning & Martin, L.L.P. hold an aggregate of 2,200 shares
of the Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that the liability
of the Company's directors for monetary damages shall be eliminated to the
fullest extent permissible under the Delaware General Corporation LAW (the
"DGCL") and that the Company may indemnify its officers, employees and agents to
the fullest extent permitted under the DGCL.
The Company's Bylaws provide that the Company must indemnify its
directors against all liabilities to the fullest extent permitted under the DGCL
and that the Company must advance all reasonable expenses incurred in a
2
<PAGE> 3
proceeding in which a director was either a party or a witness because he or she
was a director. The Company has entered into indemnification agreements with its
directors and certain of its officers that provide indemnification similar to
that provided in the Bylaws.
The DGCL 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 DGCL provides that, in general, a corporation 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 DGCL provides that a corporation is required to
indemnify such officers or directors against reasonable expenses incurred in
connection therewith. The DGCL 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 DGCL 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 DGCL 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
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<S> <C>
3.1 The Company's Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Form 10-K, filed with the Commission on
March 24, 2000, Commission File Number 0-19526).
3.2 The Company's Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to the Company's Form 10-K, filed with the Commission on
March 24, 2000, Commission File Number 0-19526).
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to the legality of the
securities being registered.
10.1 Witness Systems, Inc. Amended and Restated Stock Incentive Plan
(incorporated by reference to Exhibit 10.3 to the Company's Form 10-K,
filed with the Commission on March 24, 2000, Commission File Number 0-19526).
10.2 Witness Systems, Inc. Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.6 to the Company's Form 10-K, filed with the
Commission on March 24, 2000, Commission File Number 0-19526).
23.1 Independent Auditors' Consent and report on financial statement schedules of
KPMG LLP
</TABLE>
3
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<TABLE>
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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
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.
4
<PAGE> 5
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 Alpharetta, State of Georgia, on this the 24th day of
March, 2000.
Witness Systems, Inc.
By: /s/ David B. Gould
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DAVID B. GOULD
Chairman, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signatures
appears below constitutes and appoints David B. Gould, III and/or Jon W. Ezrine,
jointly and severally, as his true and lawful attorneys-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign a Registration Statement relating
to the registration of shares of common stock on Form S-8 and to sign any and
all amendments (including post effective amendments) to the Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing required or necessary to be done in and
about the premises, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute, could lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
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/s/ David B. Gould Chairman, President and March 24, 2000
- --------------------------------- Chief Executive Officer
DAVID B. GOULD (Principal Executive Officer)
/s/ Jon W. Ezrine Chief Financial Officer and March 24, 2000
- --------------------------------- Secretary (Principal Financial
JON W. EZRINE and Accounting Officer)
/s/ James W. Judson, Jr.
- --------------------------------- Director March 24, 2000
JAMES W. JUDSON, JR.
/s/ Thomas J. Crotty
- --------------------------------- Director March 24, 2000
THOMAS J. CROTTY
/s/ John Abraham
- --------------------------------- Director March 24, 2000
JOHN ABRAHAM
/s/ Joel G. Katz
- --------------------------------- Director March 24, 2000
JOEL G. KATZ
</TABLE>
5
<PAGE> 6
EXHIBIT INDEX
EXHIBITS INCORPORATED HEREIN BY REFERENCE
The following exhibits are filed with or incorporated by reference into this
Registration Statement pursuant to Item 601 of Regulation S-K:
<TABLE>
<CAPTION>
Designation of Exhibit Description of Exhibit
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<S> <C>
3.1 The Company's Certificate of Incorporation (incorporated by reference to
Exhibit 3.1 to the Company's Form 10-K, filed with the Commission on
March 24, 2000, Commission File Number 0-19526).
3.2 The Company's Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to the Company's Form 10-K, filed with the Commission on
March 24, 2000, Commission File Number 0-19526).
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to the legality of the
securities being registered.
10.1 Witness Systems, Inc. Amended and Restated Stock Incentive Plan
(incorporated by reference to Exhibit 10.3 to the Company's Form 10-K,
filed with the Commission on March 24, 2000, Commission File Number
0-19526).
10.2 Witness Systems, Inc. Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.6 to the Company's Form 10-K, filed with the
Commission on March 24, 2000, Commission File Number
0-19526).
23.1 Independent Auditors' Consent and report on financial statement schedules of
KPMG LLP
23.2 Consent of Morris, Manning & Martin, L.L.P. (included in Exhibit 5.1).
EXHIBITS FILED HEREWITH
5.1 Opinion of Morris, Manning & Martin, L.L.P., as to the legality of the
securities being registered.
23.1 Independent Auditors' Consent and report on financial statement schedules of
KPMG LLP
23.2 Consent of Morris, Manning & Martin, L.L.P. (included in Exhibit 5.1).
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
[Letterhead of Morris, Manning & Martin, L.L.P.]
March 24, 2000
Witness Systems, Inc.
1105 Sanctuary Parkway
Alpharetta, Georgia 30004
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Witness Systems, Inc., a Delaware
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 6,530,946 shares of the Company's common stock,
$0.01 par value per share (the "Shares"), including 5,540,946 Shares issuable
pursuant to the Witness Systems, Inc. Amended and Restated Stock Incentive Plan
and 990,000 Shares issuable pursuant to the Witness Systems, Inc. Employee Stock
Purchase Plan.
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,
MORRIS, MANNING & MARTIN, L.L.P.
/s/ Morris, Manning & Martin, L.L.P.
7
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Witness Systems, Inc.:
We consent to the use of our report incorporated by reference in the Form S-8 of
Witness Systems, Inc., which report dated February 21, 2000 relates to the
consolidated balance sheets of Witness Systems, Inc. and subsidiary as of
December 31, 1998 and 1999 and the related consolidated statements of
operations, stockholders' deficit and cash flows for each of the years in the
three-year period ended December 31, 1999 and appears in the December 31, 1999
annual report on Form 10-K of Witness Systems, Inc.
KPMG LLP
Atlanta, Georgia
March 24, 2000
