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Registration No. 333-_____
As filed with the Securities and Exchange Commission on November 18, 1999
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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METASOLV SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2436509
(State or other Jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
5560 TENNYSON PARKWAY (972) 403-8300
PLANO, TEXAS 75024 (Telephone number, including
(Address, including zip code, of area code, of registrant's
registrant's principal executive offices) principal executive offices)
METASOLV SOFTWARE, INC.
LONG-TERM INCENTIVE PLAN
MR. GLENN ETHERINGTON
CHIEF FINANCIAL OFFICER
METASOLV SOFTWARE, INC.
5560 TENNYSON PARKWAY
PLANO, TEXAS 75024
(972) 403-8300
(Name, address, including zip code and telephone number, including
area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------- ---------------------- ---------------------- ---------------------- ----------------------
Title of each Amount to be Proposed maximum Proposed maximum Amount of
class of securities registered(1) offering price per aggregate offering registration fee(2)
to be registered share(2) price(2)
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<S> <C> <C> <C> <C>
Common Stock, par value 9,320,000 $19 $177,080,000 $49,228
$.005 per share
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</TABLE>
(1) This Registration Statement includes any additional shares of the
registrant's Common Stock that may be issued pursuant to antidilution provisions
contained in the plan.
(2) Pursuant to Rule 457(h), the registration fee was computed on the basis of
the offering price of the registrant's Common Stock on November 18, 1999.
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by MetaSolv
Software, Inc. (the "Company") with the Securities and Exchange Commission
(the "Commission"), are incorporated by reference in this Registration
Statement, except to the extent that any statement or information therein is
modified, superseded or replaced by a statement or information contained in
any other subsequently filed document incorporated herein by reference:
(i) the Company's prospectus dated November 17, 1999, to be filed
pursuant to Rule 424(b) of the Securities Act of 1933, included as
part of the Company's Registration Statement on Form S-1
(File No. 333-86937);
(ii) the description of the Company's Common Stock, $.005 par value per
share, contained in the Company's Registration Statement on Form
8-A filed on November 16, 1999, including any amendment or report
filed for the purpose of updating such description; and
(iii) all documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act after the date hereof, and
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated by reference herein 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.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company has entered into indemnification agreements with each of its
directors and executive officers. The form of indemnity agreement provides
that the Company will indemnify against any and all expenses of the director
or executive officer who incurred such expenses because of his or her status
as a director or executive officer, to the fullest extent permitted by
Delaware law, the Company's certificate of incorporation and its bylaws.
The Company's certificate of incorporation and bylaws contain certain
provisions relating to the limitation of liability and indemnification of
directors and officers. The certificate of incorporation provides that the
Company's directors shall not be personally liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty as a
director, except for liability
- for any breach of the director's duty of loyalty to the
Company or its stockholders;
- for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law;
- in respect of certain unlawful payments of dividends or
unlawful stock repurchases or redemptions as provided in
Section 174 of the Delaware General Corporation Law; or
- for any transaction from which the director derives any
improper personal benefit.
The certificate of incorporation also provides that if the Delaware
General Corporation Law is amended after the approval by the Company's
stockholders of the certificate of incorporation to authorize corporate
action further eliminating or limiting the personal liability of directors,
then the liability of the Company's directors shall be eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law. The
foregoing provisions of the certificate of incorporation are not intended to
limit the liability of directors or officers for any violation of applicable
federal securities laws. In addition, as permitted by Section 145 of the
Delaware General Corporation Law, the Company's bylaws provide that
- the Company is required to indemnify its directors and
executive officers to the fullest extent permitted by the
Delaware General Corporation Law;
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- the Company may, in its discretion, indemnify other officers,
employees and agents as provided by the Delaware General
Corporation Law;
- to the fullest extent permitted by the Delaware General
Corporation Law, the Company is required to advance all
expenses incurred by its directors and executive officers in
connection with a legal proceeding (subject to certain
exceptions);
- the rights conferred in the bylaws are not exclusive;
- the Company is authorized to enter into indemnification
agreements with its directors, officers, employees and agents;
and
- the Company may not retroactively amend the bylaws provisions
relating to indemnity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
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 (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
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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 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 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 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 officers, directors, and
controlling persons of the registrant pursuant to the registrant's
certificate of incorporation or by-laws, 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
THE REGISTRANT. 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 Plano, State of Texas, on the 18th day of
November, 1999.
MetaSolv Software, Inc.
By: /s/ James P. Janicki
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James P. Janicki
President and Chief Executive Officer
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POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears
below constitutes and appoints James P. Janicki, Sid Sack and Glenn
Etherington, and each of them singly, his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and
in his name, place and stead, in any and all capacities (including his
capacity as a director and/or officer of MetaSolv Software, Inc.) to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
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
requisite and 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 or substitutes, may lawfully do or cause to be done
by virtue thereof.
IN WITNESS WHEREOF, the undersigned have executed this power of attorney
on the 18th day of November, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ James P. Janicki
- ----------------------------- President, Chief Executive Officer and November 18, 1999
James P. Janicki Director (Principal Executive Officer)
/s/ Glenn A. Etherington
- ----------------------------- Chief Financial Officer (Principal November 18, 1999
Glenn A. Etherington Financial and Accounting Officer)
/s/ David R. Semmel
- ----------------------------- Director November 18, 1999
David R. Semmel
/s/ William N. Sick, Jr.
- ----------------------------- Director November 18, 1999
William N. Sick, Jr.
/s/ Adam Solomon
- ----------------------------- Director November 18, 1999
Adam Solomon
/s/ John D. Thornton
- ----------------------------- Director November 18, 1999
John D. Thornton
/s/ Barry F. Eggers
- ----------------------------- Director November 18, 1999
Barry F. Eggers
/s/ John W. White
- ----------------------------- Director November 18, 1999
John W. White
</TABLE>
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in their
respective capacities on this 18th day of November, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James P. Janicki
- ----------------------------- President, Chief Executive Officer and November 18, 1999
James P. Janicki Director (Principal Executive Officer)
/s/ Glenn A. Etherington
- ----------------------------- Chief Financial Officer (Principal November 18, 1999
Glenn A. Etherington Financial and Accounting Officer)
/s/ David R. Semmel
- ----------------------------- Director November 18, 1999
David R. Semmel
/s/ William N. Sick, Jr.
- ----------------------------- Director November 18, 1999
William N. Sick, Jr.
/s/ Adam Solomon
- ----------------------------- Director November 18, 1999
Adam Solomon
/s/ John D. Thornton
- ----------------------------- Director November 18, 1999
John D. Thornton
/s/ Barry F. Eggers
- ----------------------------- Director November 18, 1999
Barry F. Eggers
/s/ John W. White
- ----------------------------- Director November 18, 1999
John W. White
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of MetaSolv
Software, Inc.(1)
4.2 Form of Amended and Restated Certificate of
Incorporation of MetaSolv Software, Inc. to be filed
after the closing of the offering made pursuant to the
Company's Registration Statement on Form S-1, filed on
September 10, 1999, as amended.(1)
4.3 By-Laws of MetaSolv Software, Inc., as amended.(1)
4.4 Investors' Rights Agreement, dated June 2, 1998, among
the Company and the shareholders named therein, as
amended.(1)
4.5 Form of Amended and Restated By-Laws of MetaSolv Software, Inc.
to be effective upon the closing of the offering made pursuant
to the Company's Registration Statement on Form S-1, filed on
September 10, 1999, as amended.(1)
4.6 MetaSolv Software, Inc. Long-Term Incentive Plan(2)
5 Opinion of Sachnoff & Weaver, Ltd.
23 Consent of KPMG LLP
24 Powers of Attorney (contained on the signature page hereto)
</TABLE>
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(1) Incorporated by reference from the Company's Registration Statement on Form
S-1 filed on September 10, 1999, as amended.
(2) Filed as an exhibit to the Company's Registration Statement on Form S-1
filed on September 10, 1999, as amended.
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EXHIBIT 5
[LETTERHEAD OF SACHNOFF & WEAVER, LTD.]
November 18, 1999
MetaSolv Software, Inc.
5560 Tennyson Parkway
Plano, Texas 75024
RE: REGISTRATION STATEMENT ON FORM S-8
METASOLV SOFTWARE, INC. LONG-TERM INCENTIVE PLAN
Gentlemen:
We have acted as counsel for MetaSolv Software, Inc. (the "COMPANY")
in connection with the Registration Statement on Form S-8 filed by the
Company with the Securities and Exchange Commission to effect the
registration, pursuant to the Securities Act of 1933, of 9,320,000 shares of
common stock, $0.005 par value (the "COMMON STOCK"), which may be offered by
the Company under the above-referenced plan (the "PLAN").
In connection with this opinion, we have relied as to matters of fact,
without investigation, upon certificates of public officials and others and upon
affidavits, certificates and statements of directors, officers and employees of,
and the accountants for, the Company. We also have examined originals or copies,
certified or otherwise identified to our satisfaction, of such corporate and
other instruments, documents and records as we have deemed relevant and
necessary to examine for the purpose of this opinion, including the Plan. In
addition, we have reviewed such questions of law as we have considered necessary
and appropriate for the purposes of this opinion.
We have assumed the accuracy and completeness of all documents and
records that we have reviewed, the genuineness of all signatures, the due
authority of the parties signing such documents, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all the documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, we advise you that, in our
opinion, the shares of Common Stock proposed to be offered by the Company as set
forth in the Registration Statement have been duly authorized and, when issued
and sold in accordance with the MetaSolv Software,
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Inc. Long-Term Incentive Plan referred to in the Registration Statement, such
shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement. In giving this consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933 or the rules and regulations of
the Securities and Exchange Commission.
We express no opinions as to matters under or involving any laws other
than the federal laws of the United States of America and the General
Corporation Law of the State of Delaware.
Very truly yours,
/s/ SACHNOFF & WEAVER, LTD.
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SACHNOFF & WEAVER, LTD.
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Exhibit 23
Consent of Independent Auditors
The Board of Directors
MetaSolv Software, Inc.
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG LLP
Dallas, Texas
November 18, 1999
