SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
OPENWAVE SYSTEMS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-3219054
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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Software.com, Inc. 1995 Stock Plan
Software.com, Inc. 2000 Nonstatutory Stock Option Plan
Software.com, Inc. 1999 Employee Stock Purchase Plan
At Mobile.com, Inc. Amended and Restated 1997 Stock Option Plan
bCandid Corporation 1999 Equity Incentive Plan
Mobility.Net Corporation 1999 Stock Option Plan
Options under Stock Option Agreements, dated September 25, 1998 and
November 20, 1998
Options under Stock Option Agreement, effective as of January 26, 2001
Phone.com, Inc. 1996 Stock Plan
(Full Titles of the Plans)
Donald J. Listwin
President and Chief Executive Officer
Openwave Systems Inc.
800 Chesapeake Drive
Redwood City, California 94063
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy To:
Kenton J. King, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue, Ste. 220
Palo Alto, California 94301
(650) 470-4500
(1) Shares of Openwave Systems Inc. common stock par value $0.001 per share are issuable pursuant to the plans at various exercise prices.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the actual weighted average exercise price of the outstanding options, and rounded down to the nearest one tenth of one cent.
(3) The actual aggregate offering price based on the actual weighted average
exercise price per share. Actual weighted average exercise prices are as
follows: Software.com, Inc. 1995 Stock Plan: $66.06 (based on the average of
the high and low price on January 25, 2001 of Registrant's common stock);
Software.com, Inc. 2000 Non Statutory Stock Option Plan: $66.06;
Software.com, Inc. 1999 Employee Stock Purchase Plan: $66.06; At Mobile.com,
Inc. Amended and Restated 1997 Stock Option Plan: $9.17; bCandid Corporation
1999 Equity Incentive Plan: $28.12; Mobility.Net Corporation 1999 Stock
Option Plan; $0.40; Stock Option Agreements, dated September 25, 1998 and
November 20, 1998, between Software.com, Inc. and John MacFarlane: $2.27;
Stock Option Agreement, effective as January 26, 2001, between Openwave
Systems Inc. and Donald J. Listwin: $86.06; Phone.com, Inc. 1996 Stock Plan:
$66.06.
In addition pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein.
The registration statement will become effective upon filing in accordance with Rule 462(a) under the Securities Act.
PART I
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* The document(s) containing the information specified in Part I of Form S-8 have been or will be sent or given to employees as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Securities and Exchange Commission requires us to "incorporate by reference" certain of our publicly-filed documents into this prospectus, which means that information included in those documents is considered part of the prospectus. Information that we file with the SEC after the effective date of this prospectus will automatically update and supersede this information. We incorporate by reference the documents listed below and future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended until we terminate the effectiveness of this registration statement.
The following documents filed with the SEC are hereby incorporated by reference:
(a) Our Annual Report on Form 10-K405 filed with the SEC on August 31, 2000 (No. 000-25687).
(b) Our Quarterly Report on Form 10-Q for the three months ended September 30, 2000 filed with the SEC on November 14, 2000.
(c) Our Current Report on Form 8-K/A filed with the SEC on January 31, 2001 and our Current Report on Form 8-K filed with the SEC on August 17, 2000.
(d) The descriptions of our Common Stock contained in our Registration Statement on Form 8-A12G filed with the SEC on April 1, 1999 (No. 333-75219) and our Registration Statement on Form 8-A12B filed with the SEC on August 17, 2000.
Item 4. Description of the Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Our Amended and Restated Certificate of Incorporation reduces the liability of a director to the corporation or its stockholders for monetary damages for breaches of his or her fiduciary duty of care to the fullest extent permissible under Delaware law. Our Amended and Restated By-laws further provide for indemnification of corporate agents to the maximum extent permitted by the Delaware General Corporation Law. In addition, we have entered into indemnification agreements with our officers and directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
See Index to Exhibits.
Item 9. Undertakings
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. 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective 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;
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 herein, 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.
4. 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 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.
5. 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 SEC 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.
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 Redwood City, State of California, on January 31, 2001.
By: /s/ Alan Black
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Alan Black
Senior Vice President, Corporate Affairs,
Chief Financial Officer and Treasurer
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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 the capacities indicated on January 31, 2001.
Signature Title
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/s/ Donald J. Listwin
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Donald J. Listwin President, Chief Executive Officer and Director
(principal executive officer)
/s/ Alain Rossmann
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Alain Rossmann Chairman of the Board, Executive Vice President,
Secretary and Director
/s/ Alan Black
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Alan Black Senior Vice President, Corporate Affairs, Chief
Financial Officer and Treasurer
(principal financial and accounting officer)
/s/ Roger Evans
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Roger Evans Director
/s/ John MacFarlane
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John MacFarlane Executive Vice President and Director
/s/ Andrew Verhalen
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Andrew Verhalen Director
/s/ Bernard Puckett
-----------------------------------
Bernard Puckett Director
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EXHIBIT INDEX
Exhibit
Number
5.1 Opinion of Skadden, Arps, Slate, Meagher and Flom LLP
23.1 Consent of Skadden, Arps, Slate Meagher and Flom LLP
(included in Exhibit 5.1)
23.2 Consent of KPMG LLP, independent auditors, with respect to Phone.com,
Inc.
23.3 Consent of Ernst & Young, LLP, independent auditors, with respect to
Software.com, Inc.
24.1 Power of Attorney
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Exhibit 5.1
January 31, 2001
Openwave Systems Inc.
800 Chesapeake Drive
Redwood City, California 94063
Ladies and Gentlemen:
We have acted as special counsel to Openwave Systems Inc., a Delaware corporation (the "Company"), in connection with the proposed issuance by the Company of up to 16,496,892 shares of common stock, par value $0.001 per share of the Company (the "Shares"), pursuant to the Software.com, Inc. 1995 Stock Plan, the Software.com, Inc. 2000 Nonstatutory Stock Option Plan, the Software.com, Inc. 1999 Employee Stock Purchase Plan, the At Mobile.com, Inc. Amended and Restated 1997 Stock Option Plan, the bCandid Corporation 1999 Equity Incentive Plan, the Mobility.Net Corporation 1999 Stock Option Plan, the Stock Option Agreements, dated September 25, 1998 and November 20, 1998, between Software.com, Inc. and John MacFarlane, the Stock Option Agreement, effective as of January 26, 2001, between Openwave Systems Inc. and Donald J. Listwin and the Phone.com, Inc. 1996 Stock Plan (collectively the "Plans").
This opinion is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended (the "Securities Act").
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
(i) the Company's Registration Statement Form S-8, relating to the Shares, filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act on January 31, 2001 (together with all exhibits thereto the
"Registration Statement"), (ii) the Amended and Restated Certificate of
Incorporation of the Company, as currently in effect, (iii) the Amended and
Restated By-Laws of the Company, as currently in effect, (iv) the form of common
stock certificate as filed with the Securities Exchange Commission as an exhibit
to Form S-1A, on May 24, 1999 (the "Form of Common Stock Certificate"), (v) the
Plans; and (vi) the forms of option agreement between the Company and the
employees, directors and officers receiving options (the "Option Agreements").
We have also examined originals or copies, certified or otherwise identified to
our satisfaction, of such records of the Company and such agreements,
certificates of officers or other representatives of the Company and others, and
such other documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. In making our examination of documents executed or to be executed by parties other than the Company, we have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof. We have further assumed (i) that each of the Option Agreements to be entered into between the Company and the employees, directors and officers receiving options under the Plans will conform to the applicable form of agreement examined by us, (ii) that no options will be granted under the Plans with exercise prices below the then par value of the Shares and (iii) that no adjustment to the exercise price of any option will result in a reduction of the price per Share issuable upon the exercise of any option to a price below the par value of the Shares at the time of exercise. As to any facts material to the opinions expressed herein which we have not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others.
Members of our firm are admitted to the Bar in the State of California, and we do not express any opinion as to the laws of any other jurisdiction other than the General Corporation Law of the State of Delaware to the extent specifically referred to herein.
Based upon and subject to the foregoing, we are of the opinion that the Shares to be issued under the Plans have been duly authorized, and, when the Shares have been issued, delivered and paid for upon exercise of options duly granted pursuant to the terms of the Plans and the Option Agreements, and the Form of Common Stock Certificate representing Shares has been manually signed by an authorized officer of the transfer agent and registrar for the Shares and registered by such transfer agent and registrar, such Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP |
Exhibit 23.2
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
We consent to incorporation herein by reference of our report dated July 19, 2000, except as to Note 10, which is as of August 11, 2000, relating to the consolidated balance sheets of Phone.com, Inc. and subsidiaries as of June 30, 1999 and 2000, and the related consolidated statements of operations, stockholders' equity and comprehensive loss, and cash flows for each of the years in the three-year period ended June 30, 2000, which report appears in the June 30, 2000 Annual Report on Form 10-K405 of Openwave Systems Inc., formerly Phone.com, Inc.
/s/ KPMG LLP
Mountain View, California
January 31, 2001
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Exhibit 23.3
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in this Openwave Systems Inc. Registration Statement (Form S-8) of our report dated July 12, 2000, with respect to the consolidated financial statements of Software.com, Inc. included in the Registration Statement (Form S-4 No. 333-44926) as amended and related joint proxy statement/prospectus of Phone.com, Inc. filed with the Securities Exchange Commission on August 31, 2000.
/s/ Ernst & Young LLP
Woodland Hills, California
January 31, 2001
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Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Alan Black and Linda Speer, jointly and severally, his or her attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, 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 as he or she might or could do in person, and ratifying and confirming all that the attorneys-in-fact and agents, or his or her substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, the undersigned has herein-to subscribed this power of attorney this 31st day of January, 2001.
/s/ Donald J. Listwin
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Donald J. Listwin
/s/ Alain Rossmann
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Alain Rossmann
/s/ Alan Black
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Alan Black
/s/ Roger Evans
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Roger Evans
/s/ Andrew Verhalen
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Andrew Verhalen
/s/ John MacFarlane
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John MacFarlane
/s/ Bernard Puckett
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Bernard Puckett
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