As filed with the Securities and Exchange Commission on August 9, 2002
Registration No. 333-                    
 
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
incorporation or organization)
 
(I.R.S. Employer
Identification Number)
 
1400 Seaport Boulevard
Redwood City, California 94063
(650) 480-8000
(Address, including ZIP Code and Telephone Number, Including Area Code, of Principal Executive Offices)
 
 
Openwave Systems Inc. 2001 Stock Compensation Plan
Openwave Systems Inc. 1995 Stock Plan
Openwave Systems Inc. 1996 Stock Plan
Openwave Systems Inc. 1999 Employee Stock Purchase Plan
(Full Titles of the Plans)
 
 
Donald J. Listwin
President and Chief Executive Officer
Openwave Systems Inc.
1400 Seaport Boulevard
Redwood City, California 94063
 
 
Copy to:
Stephen Fackler, Esq.
Simpson Thacher & Bartlett
3330 Hillview Avenue
Palo Alto, California 94304
(650) 251-5000
 
 
CALCULATION OF REGISTRATION FEE
 
Title of Securities
to be Registered(1)
  
Amount to be
Registered(2)(3)
    
Proposed Maximum Offering Price
Per Share(3)
  
Proposed Maximum Aggregate Offering Price(3)
    
Amount of Registration Statement Fee
Openwave Systems Inc. 2001 Stock Compensation Plan, Common Stock, par value $0.001 per share
  
1,600,000
    
$1.095
  
$1,752,000
    
$161.18
Openwave Systems Inc. 1995 Stock Plan, Common Stock, par value $0.001 per share
  
7,071,742
    
$1.095
  
$7,743,557
    
$712.41
Openwave Systems Inc. 1996 Stock Plan, par value $0.001 per share
  
3,000,000
    
$1.095
  
$3,285,000
    
$302.22
Openwave Systems Inc. 1999 Employee Stock Purchase Plan, Common Stock, par value $0.001 per share
  
3,292,111
    
$.9308
  
$3,064,132
    
$281.90
(1)
 
The securities to be registered include options and rights to acquire Common Stock.
(2)
 
Pursuant to Rule 416(a), this registration statement also covers any additional securities that may be offered or issued in connection with any stock split, stock dividend or similar transaction.
(3)
 
Estimated solely for the purposes of this offering under Rule 457. As to 11,671,742 shares being registered under the Openwave Systems Inc. 2001 Stock Compensation Plan, the Openwave Systems Inc. 1995 Stock Plan and the Openwave Systems Inc. 1996 Stock Plan, the price is based on the average of the high and low price per share of the registrant’s common stock, as reported on the Nasdaq National Market on August 5, 2002. The Openwave Systems Inc. 1999 Employee Stock Purchase Plan establishes a purchase price equal to 85% of the fair market value of the registrant’s common stock. As to 3,292,111 shares being registered under this plan, the price for the shares is based upon 85% of the average of the high and low price per share of the common stock on the Nasdaq National Market on August 5, 2002.
 
 
The registration statement will become effective upon filing in accordance with Rule 462(a) under the Securities Act.
 

 
PART I
 
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
 
The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Securities and Exchange Commission (the “SEC”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
 
PART II
 
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
 
Item 3.     Incorporation of Documents by Reference
 
The SEC 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 latest annual report on Form 10-K filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), containing audited financial statements for our latest fiscal year ended June 30, 2001 as filed with the Securities and Exchange Commission on September 28, 2001.
 
(b)  Our Quarterly Report on Form 10-Q for the three and nine months ended March 31, 2002 filed on May 15, 2002, for the three and six months ended December 31, 2000 filed on February 12, 2002 and for the three months ended September 30, 2001 filed on November 13, 2001.
 
(c)  Our Current Reports on Form 8-K filed on May 31, 2002, January 8, 2002, September 18, 2001, September 12, 2001, August 2, 2001, July 16, 2001 and July 2, 2001.
 
(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
 
The class of securities to be offered is registered under Section 12 of the Exchange Act.
 
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 Exhibit Index.
 
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;
 
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, 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 15 (d) of the Securities Exchange Act of 1934 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

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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.

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SIGNATURE
 
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 August 9, 2002.
 
By:
 
/s/    A LAN B LACK        
   
Alan Black
Senior Vice President, Corporate Affairs
Chief Financial Officer and Treasurer
 
SIGNATURES AND POWER OF ATTORNEY
 
The officers and directors of Openwave Systems Inc. whose signatures appear below, hereby constitute and appoint Alan Black and Linda Speer and each of them, their true and lawful attorneys and agents, with full power of substitution, each with power to act alone, to sign and execute on behalf of the undersigned any amendment or amendments to this registration statement on Form S-8, and each of the undersigned does hereby ratify and confirm all that each of said attorney and agent, or their, his or her substitutes, shall do or cause to be done by virtue hereof.
 
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 August 8, 2002.
 
Signature
  
Title
/ S /    D ONALD J. L ISTWIN        
Donald J. Listwin
  
Chairman of the Board, President, Chief Executive Officer and Director (principal executive officer)
/ S /    A LAN B LACK        
Alan Black
  
Senior Vice President, Corporate Affairs, Chief Financial Officer and Treasurer (principal financial and accounting officer)
/ S /    R OGER E VANS        
Roger Evans
  
Director
/ S /    J OHN M AC F ARLANE        
John MacFarlane
  
Executive Vice President and Director
/ S /    B O H EDFORS         
Bo Hedfors
  
Director
/ S /    B ERNARD P UCKETT        
Bernard Puckett
  
Director
 

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EXHIBIT INDEX
 
Exhibit Number
  
Exhibit
  5   
  
Opinion re legality
23.1
  
Consent of Counsel (included in Exhibit 5)
23.2
  
Consent of KPMG LLP, independent auditors, with respect to Phone.com, Inc. (currently known as Openwave Systems Inc.)
23.3
  
Consent of Ernst & Young, LLP, independent auditors, with respect to Software.com, Inc.
24   
  
Power of Attorney (included in signature pages to this registration statement)
 
Exhibit 5
 
August 8, 2002
 
Openwave Systems Inc.
1400 Seaport Boulevard
Redwood City, California 94063
 
Ladies and Gentlemen:
 
We have acted as counsel to Openwave Systems Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, relating to shares (the “Shares”) of Common Stock, par value $0.001 per share, of the Company to be issued by the Company pursuant to the Openwave Systems Inc. 2001 Stock Compensation Plan, the Openwave Systems Inc. 1995 Stock Plan, the Openwave Systems Inc. 1996 Stock Plan and the Openwave Systems Inc. 1999 Employee Stock Purchase Plan (collectively, the “Plans”).
 
We have examined the Registration Statement, a form of the share certificate, and the Plans. We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, instruments and other documents and have made such other and further investigations as we have deemed relevant and necessary in connection with the opinions expressed herein. As to questions of fact material to this opinion, we have relied upon certificates of public officials and of officers and representatives of the Company.
 
In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies, and the authenticity of the originals of such latter documents.
 
Based upon the foregoing, and subject to the qualifications and limitations stated herein, we are of the opinion that (1) the Shares have been duly authorized and (2) upon the issuance of the Shares in accordance with the terms of the Plans and the payment of the consideration therefor pursuant to the terms of such Plans, such Shares will be validly issued, fully paid and nonassessable.
 
We do not express any opinion herein concerning any law other than the Delaware General Corporation Law.
 
We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. Except as stated herein, this opinion letter may not be relied upon by you for any other purpose, or relied upon by, or furnished to, any other person, firm or corporation without our prior written consent.
 
Very truly yours,
 
/s/    S IMPSON T HACHER & B ARTLETT        

 
Exhibit 23.2
 
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
 
We consent to incorporation herein by reference of our reports dated July 23, 2001 except as to Note 11, which is as of September 25, 2001, relating to the consolidated balance sheets of Openwave Systems Inc. (formerly Phone.com, Inc.) and subsidiaries as of June 30, 2001 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, 2001, and the related financial statement schedule, which reports appear in the June 30, 2001 Annual Report on Form 10-K of Openwave Systems Inc.
 
 
/s/ KPMG LLP
 
 
Mountain View, California
August 8, 2002
 
Exhibit 23.3
 
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
 
We consent to the incorporation by reference in the Openwave Systems Inc. Registration Statement (Form S-8) pertaining to the Openwave Systems Inc. 2001 Stock Compensation Plan, Openwave Systems Inc. 1995 Stock Plan, Openwave Systems Inc. 1996 Stock Plan and the Openwave Systems Inc. 1999 Employee Stock Purchase Plan of our report dated July 12, 2000, with respect to the supplemental consolidated financial statements of Software.com, Inc. for the year ended December 31, 1999, included in its Annual Report (Form 10-K) filed with the Securities and Exchange Commission.
 
 
/s/    E RNST & Y OUNG LLP
 
 
Woodland Hills, California
August 7, 2002