S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on January 31, 2001 Registration No. 333-44926 ================================================================================ 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) 800 Chesapeake Drive Redwood City, California 94063 (650) 562-0200 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Principal Executive Offices) 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 __________________
CALCULATION OF REGISTRATION FEE ============================================================================================================= Amount Proposed Maximum Proposed Maximum Amount of Title of Securities to be to be Offering Price Aggregate Registration Registered Registered Per Share (1) Offering Price (2) Fee (3) ============================================================================================================= Software.com, Inc. 7,571,882 $ 66.06 $500,217,454.60 $125,054.36 1995 Stock Plan Common Stock, par value $0.001 per share ------------------------------------------------------------------------------------------------------------- Software.com, Inc. 43,311 $ 66.06 $ 2,861,232.94 $ 715.31 2000 Nonstatutory Stock Option Plan Common Stock, par value $0.001 per share ------------------------------------------------------------------------------------------------------------- Software.com, Inc. 439 $ 66.06 $ 29,001.44 $ 7.25 1999 Employee Stock Purchase Plan Common Stock, par value $0.001 per share ------------------------------------------------------------------------------------------------------------- At Mobile.com, Inc. 114,098 $ 9.17 $ 1,046,650.96 $ 261.66 Amended and Restated 1997 Stock Option Plan Common Stock, par value $0.001 per share ------------------------------------------------------------------------------------------------------------- bCandid Corporation 80,229 $ 28.12 $ 2,255,945.29 $ 563.99 1999 Equity Incentive Plan Common Stock, par value $0.001 per share ------------------------------------------------------------------------------------------------------------- Mobility.Net Corporation 61,930 $ 0.400 $ 24,772.00 $ 6.19 1999 Stock Option Plan Common Stock, par value $0.001 per share ------------------------------------------------------------------------------------------------------------- Stock Option Agreements, dated 3 $ 2.270 $ 6.81 $ 0.01 September 25, 1998 and November 20, 1998, between Software.com, Inc. and John MacFarlane. ------------------------------------------------------------------------------------------------------------- Stock Option Agreement, effective 4,500,000 $ 86.06 $387,281,250.00 $ 96,820.31 as of January 26, 2001, between Openwave Systems Inc. and Donald J. Listwin. ------------------------------------------------------------------------------------------------------------- Phone.com, Inc. 4,125,000 $ 66.06 $272,507,812.50 $ 68,126.95 1996 Stock Plan Common Stock, par value $0.001 per share -------------------------------------------------------------------------------------------------------------
(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 ------------------------------------------- Alan Black Senior Vice President, Corporate Affairs, Chief Financial Officer and Treasurer 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 --------- ----- /s/ Donald J. Listwin ----------------------------------- Donald J. Listwin President, Chief Executive Officer and Director (principal executive officer) /s/ Alain Rossmann ----------------------------------- Alain Rossmann Chairman of the Board, Executive Vice President, Secretary and Director /s/ Alan Black ----------------------------------- Alan Black Senior Vice President, Corporate Affairs, Chief Financial Officer and Treasurer (principal financial and accounting officer) /s/ Roger Evans ----------------------------------- Roger Evans Director /s/ John MacFarlane ----------------------------------- John MacFarlane Executive Vice President and Director /s/ Andrew Verhalen ----------------------------------- Andrew Verhalen Director /s/ Bernard Puckett ----------------------------------- Bernard Puckett Director
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