AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 12, 2000
REGISTRATION NO. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PRECISE SOFTWARE SOLUTIONS LTD.
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(Exact Name of Registrant as Specified in Its Charter)
ISRAEL N/A
------ ---
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
PRECISE SOFTWARE SOLUTIONS LTD.
1 HASHIKMA STREET
SAVYON, ISRAEL 56518
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(Address of Principal Executive Offices) (Zip Code)
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1995 SHARE OPTION AND INCENTIVE PLAN
1998 SHARE OPTION AND INCENTIVE PLAN
2000 EMPLOYEE SHARE PURCHASE PLAN
(Full Title of the Plan)
------------------------------
PRECISE SOFTWARE SOLUTIONS, INC.
690 CANTON STREET
WESTWOOD, MA 02090
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(Name and Address of Agent For Service)
(781) 461-0700
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(Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
Kenneth J. Gordon, Esq.
TESTA, HURWITZ & THIBEAULT, LLP
125 High Street
Boston, Massachusetts 02110
(617) 248-7000
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
------------------------------------ ---------- --------- -------------- ----------------
<S> <C> <C> <C> <C>
1995 SHARE OPTION AND INCENTIVE PLAN 161,728 $ 0.375(1) $ 60,648.00 $ 16.01
Ordinary Shares (par value 0.03 NIS per share) 335,020 $ 1.035(1) $ 346,745.70 $ 91.54
1998 SHARE OPTION AND INCENTIVE PLAN 500,158 $ 0.375(1) $ 187,559.25 $ 49.52
Ordinary Shares (par value 0.03 NIS per share) 1,543,119 $ 1.035(1) $ 1,597,128.17 $ 421.64
1,374,028 $ 1.500(1) $ 2,061,042.00 $ 544.12
226,028 $10.350(1) $ 2,339,389.80 $ 617.60
667,742 $15.000(1) $10,016,130.00 $ 2,644.26
428,110 $19.625(1) $ 8,401,658.75 $ 2,218.04
1,975,904 $24.125(2) $47,668,684.00 $12,584.53
2000 EMPLOYEE SHARE PURCHASE PLAN
Ordinary Shares (par value 0.03 NIS per share) 667,000 $24.125(2) $16,091,375.00 $ 4,248.12
TOTAL: 7,878,837 $88,770,360.67 $23,435.38
</TABLE>
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(1) Such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457(h), the aggregate offering price
and the fee have been computed upon the basis of the price at which the
options may be exercised. The offering price per share set forth for such
shares is the exercise price per share at which such options are
exercisable.
(2) The price of $24.125 per share, which is the average of the high and low
prices of an Ordinary Share of the Registrant reported on the Nasdaq
National Market on September 11, 2000, is set forth solely for purposes
of calculating the filing fee pursuant to Rule 457(c) and has been used
for those shares without a fixed exercise price.
2
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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 employees, directors and others as specified by Rule
428(b)(1). 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.
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 employees, directors or others as specified by Rule
428(b)(1). 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.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Precise Software Solutions Ltd. (the
"Company" or the "Registrant") with the Commission pursuant to the Securities
Act of 1933, as amended (the "Securities Act") and the Securities Exchange Act
of 1934, as amended (the "Exchange Act") are incorporated by reference in this
Registration Statement:
(a) The Registrant's Prospectus dated June 29, 2000, filed with
the Commission pursuant to Rule 424(b) under the Securities
Act on June 30, 2000.
(b) The Registrant's quarterly report on Form 10-Q for the quarter
ended June 30, 2000 filed with the Commission on August 14,
2000.
(c) The section entitled "Description of Registrant's Securities
to be Registered" contained in the Registrant's Registration
Statement on Form 8-A, filed with the Commission pursuant to
Section 12(g) of the Exchange Act on June 27, 2000, including
any amendment or report filed for the purpose of updating such
description.
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-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.
3
<PAGE>
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Israeli Companies Law provides that an Israeli company cannot
exempt an office holder from liability with respect to a breach of his fiduciary
responsibilities. For purposes of the Companies Law, an "office holder" is any
director, general manager, officer directly subordinate to a general manager or
any other person with similar responsibilities. However, the Company's articles
of association provide that, subject to the provisions of the Companies Law, it
may insure the liability, in whole or in part, of any office holder with respect
to: (a) a breach of the duty of care to the Company or to another person, (b) a
breach of the fiduciary duty to the Company, provided that the office holder
acted in good faith and had reasonable cause to assume that his act would not
prejudice the Company's interests, or (c) a financial liability imposed upon him
in favor of another person in respect of an act performed by him in his capacity
as an office holder of the Company. In addition, the Company may indemnify an
office holder against: (i) a financial liability imposed on him in favor of
another person by any judgment, including a compromise judgment or an
arbitrator's award approved by a court in respect of an act performed in his
capacity as an office holder of the Company, and (ii) reasonable litigation
expenses, including attorneys' fees, incurred by such office holder or charged
to him by a court in proceedings instituted against him by the Company or on its
behalf or by another person, or in a criminal charge from which he was
acquitted, all in respect of an act performed in his capacity as an office
holder of the Company. The Company's articles of association state that an
office holder, for purposes of the provisions of the articles relating to
insurance and indemnification, includes a director, a general manager, the chief
executive officer, an executive vice president, a vice president, other managers
directly subordinate to the general manager and any person who fills one of the
above positions, even if he carries a different title. Furthermore, the
Company's articles of association provide that the Company may also procure
insurance or indemnify any person who is not an office holder, including,
without limitation, an employee, agent, consultant or contractor of the Company
who is not an office holder. The Company has indemnification agreements with its
Chief Executive Officer, and certain other employees. The Company also maintains
a directors and officers liability insurance policy.
The Company's U.S. subsidiary has also entered into indemnification
agreements with certain of its key employees. These agreements provide,
independent of the indemnification these individuals are entitled to by law and
under the provisions of the subsidiary's charter, indemnification for certain
acts while employed by the subsidiary. These indemnification agreements contain
exclusions, such as limiting indemnification that would be unlawful or that is
covered by other liability insurance. Moreover, employees are not indemnified
against liability to the extent that the employee gained a personal profit to
which he or she is not legally entitled, including proceeds obtained from the
illegal trading of the Company's equity securities. The performance of these
agreements is guaranteed by the Company as parent of the U.S. subsidiary, to the
extent permitted by Israeli law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
4
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ITEM 8. EXHIBITS.
Exhibit No. Description of Exhibit
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4.1 Specimen certificate for the Registrant's Ordinary Shares
(filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form F-1 (SEC File No. 333-11992) and
incorporated herein by reference).
4.2 Amended and Restated Articles of Association of the Registrant
(filed as Exhibit 3.4 to the Registrant's Registration
Statement on Form F-1 (SEC File No. 333-11992) and
incorporated herein by reference).
4.3 Memorandum of Association of the Registrant (filed as Exhibit
3.1 to the Registrant's Registration Statement on Form F-1
(SEC File No. 333-11992) and incorporated herein by
reference).
4.4 Amendment to Memorandum of Association of the Registrant
(filed as Exhibit 3.2 to the Registrant's Registration
Statement on Form F-1 (SEC File No. 333-11992) and
incorporated herein by reference).
5 Opinion of Volovelsky, Dinstein, Sneh & Co.
23.1 Consent of Kost, Forer & Gabbay, a member of Ernst & Young
International.
23.2 Consent of Volovelsky, Dinstein, Sneh & Co. (included in
Exhibit 5).
24 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. 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
5
<PAGE>
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
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.
(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;
(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.
6
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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 the City of Boston, Commonwealth of Massachusetts, on this 12th
day of September, 2000.
PRECISE SOFTWARE SOLUTIONS LTD.
By: /s/ Shimon Alon
-------------------------------------
Shimon Alon
President and Chief Executive Officer
7
<PAGE>
POWER OF ATTORNEY AND SIGNATURES
The undersigned officers and directors of Precise Software Solutions
Ltd., hereby constitute and appoint Shimon Alon and J. Benjamin H. Nye, and each
of them singly, our true and lawful attorneys-in-fact, 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 Precise Software Solutions Ltd.,
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 below by the following persons in the
capacities and on the dates indicated.
<TABLE><CAPTION>
Signature Title(s) Date
--------- -------- ----
<S> <C> <C>
/s/ Shimon Alon President, Chief Executive Officer September 12, 2000
------------------------------------ and Director (Principal Executive Officer)
Shimon Alon
/s/ J. Benjamin H. Nye Chief Financial Officer, Vice President September 12, 2000
------------------------------------ of Finance (Principal Financial Officer)
J. Benjamin H. Nye
/s/ Dror Elkayam Controller (Principal Accounting September 12, 2000
------------------------------------ Officer)
Dror Elkayam
/s/ Yuval Cohen Director September 12, 2000
------------------------------------
Yuval Cohen
/s/ Robert J. Dolan Director September 12, 2000
------------------------------------
Robert J. Dolan
/s/ Erel Margalit Director September 12, 2000
------------------------------------
Erel Margalit
/s/ Mary A. Palermo Director September 11, 2000
------------------------------------
Mary A. Palermo
/s/ Yoseph Sela Director September 10, 2000
------------------------------------
Yoseph Sela
/s/ Anton Simunovic Director September 12, 2000
------------------------------------
Anton Simunovic
/s/ Ron Zuckerman Director and Chairman of September 10, 2000
------------------------------------ the Board of Directors
Ron Zuckerman
</TABLE>
8
<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
----------- ----------------------
4.1 Specimen certificate for the Registrant's Ordinary Shares
(filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form F-1 (SEC File No. 333-11992) and
incorporated herein by reference).
4.2 Amended and Restated Articles of Association of the Registrant
(filed as Exhibit 3.4 to the Registrant's Registration
Statement on Form F-1 (SEC File No. 333-11992) and
incorporated herein by reference).
4.3 Memorandum of Association of the Registrant (filed as Exhibit
3.1 to the Registrant's Registration Statement on Form F-1
(SEC File No. 333-11992) and incorporated herein by
reference).
4.4 Amendment to the Memorandum of Association of the Registrant
(filed as Exhibit 3.2 to the Registration Statement on Form
F-1 (SEC File No. 333-11992) and incorporated herein by
reference.
5 Opinion of Volovelsky, Dinstein, Sneh & Co.
23.1 Consent of Kost, Forer & Gabbay, a member of Ernst & Young
International.
23.2 Consent of Volovelsky, Dinstein, Sneh & Co. (included in
Exhibit 5).
24 Power of Attorney (included as part of the signature page to
this Registration Statement).
