As filed with the Securities and Exchange Commission on April 7, 2000
REGISTRATION STATEMENT NO. 333-
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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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BREAKAWAY SOLUTIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-3285165
(State of Incorporation) (I.R.S. Employer Identification Number)
50 ROWES WHARF
BOSTON, MASSACHUSETTS 02110
(617) 960-3400
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
EGGROCK PARTNERS, INC.
1999 STOCK OPTION AND GRANT PLAN
(Full Title of the Plan)
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GORDON BROOKS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BREAKAWAY SOLUTIONS, INC.
50 ROWES WHARF
BOSTON, MASSACHUSETTS 02110
(617) 960-3400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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With a copy to:
David E. Redlick, Esq.
Thomas L. Barrette, Jr., Esq.
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
(617) 526-6000
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CALCULATION OF REGISTRATION FEE
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Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
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Common Stock, par value 1,095,621 shares $33.00(1) $36,155,493.00 $9,546.00
$.000125 per share
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(1) This estimate is based on the average of the high and low sales prices
on the Nasdaq National Market of the Common Stock of Breakaway
Solutions, Inc. on April 5, 2000 pursuant to Rules 457(c) and (h) under
the Securities Act of 1933, as amended, solely for purposes of
determining the registration fee.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to register the
shares of common stock, $.000125 par value per share (the "Common Stock"), of
Breakaway Solutions, Inc., a Delaware corporation (the "Registrant"), issuable
pursuant to the 1999 Stock Option and Grant Plan (the "Plan") of Eggrock
Partners, Inc., a Delaware corporation ("Eggrock"). On March 31, 2000, pursuant
to the terms of the Agreement and Plan of Merger among the Registrant, Benedict
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the
Registrant, and Eggrock, dated as of January 26, 2000, 1999, the Registrant
assumed all of the outstanding options to purchase shares of common stock of
Eggrock under the Plan.
PART I.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Plan, pursuant to Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act").
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus filed
pursuant to Rule 424(b) of the Securities Act of 1933, as amended (the
"Securities Act"), that contained audited information financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the Common Stock of the Registrant,
$0.000125 par value per share, contained in a registration statement filed under
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed 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 shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock being offered hereby will be passed
upon for the Company by Hale and Dorr LLP, Boston, Massachusetts. An investment
partnership comprised of partners and senior executives of Hale and Dorr LLP
owns 15,390 shares of the Registrant's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Article SEVENTH of the Registrant's Certificate of Incorporation
provides that no director of the Registrant shall be personally liable for any
monetary damages for any breach of fiduciary duty as a director, except to the
extent that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
Article EIGHTH of the Registrant's Certificate of Incorporation
provides that a director or officer of the Registrant:
(a) shall be indemnified by the Registrant against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred in connection with any litigation or other legal proceeding (other than
an action by or in the right of the Registrant) brought against him by virtue of
his position as a director or officer of the Registrant if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as a director or officer of the Registrant if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, except that no indemnification
shall be made with respect to any matter as to which such person shall have been
adjudged to be liable to the Registrant, unless a court determines that, despite
such adjudication but in view of all of the circumstances, he is entitled to
indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer
has been successful, on the merits or otherwise, including, without limitation,
the dismissal of an action without prejudice, he is required to be indemnified
by the Registrant against all expenses (including attorneys' fees) incurred in
connection therewith. Expenses shall be advanced to a director or officer at his
request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such
expenses.
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
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Article EIGHTH of the Registrant's Certificate of Incorporation further
provides that the indemnification provided therein is not exclusive, and
provides that in the event that the Delaware General Corporation Law is amended
to expand the indemnification permitted to directors or officers the Registrant
must indemnify those persons to the fullest extent permitted by such law as so
amended.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. UNDERTAKINGS.
1. The 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; 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;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if 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 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.
2. 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to 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.
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3. 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 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
Pursuant to the requirements of the Securities Act, 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, State of Massachusetts on April 7, 2000.
BREAKAWAY SOLUTIONS, INC.
By: /s/ Kevin Comerford
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KEVIN COMERFORD
VICE PRESIDENT, ADMINISTRATION,
CHIEF FINANCIAL OFFICER, TREASURER
AND SECRETARY
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Breakaway Solutions, Inc.
hereby severally constitute and appoint Gordon Brooks, Kevin Comerford and
Thomas L. Barrette, Jr., and each of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our
names in the capacities indicated below, the Registration Statement on Form S-8
filed herewith and any and all subsequent amendments to said Registration
Statement, and generally to do all such things in our names and behalf in our
capacities as officers and directors to enable Breakaway Solutions, Inc. to
comply with all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by said attorneys,
or any of them, to said Registration Statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
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/s/ Gordon Brooks
- --------------------------- President and Chief Executive Officer April 7, 2000
Gordon Brooks (Principal Executive Officer) and
Director
/s/ Kevin Comerford
- --------------------------- Vice President Administration, April 7, 2000
Kevin Comerford Chief Financial Officer, Treasurer
and Secretary (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Christopher H. Greendale
- --------------------------- Chairman of the Board of Directors April 7, 2000
Christopher H. Greendale
/s/ Frank Selldorff
- --------------------------- Director April 7, 2000
Frank Selldorff
- --------------------------- Director
Walter W. Buckley
EXHIBIT INDEX
Exhibit
Number Description
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4.1 * Third Amended and Restated Certificate of Incorporation of the Registrant.
4.2 * Amended and Restated Bylaws of the Registrant.
4.3 * Specimen certificate for shares of the Registrant's common stock.
5.1 Opinion of Hale and Dorr LLP.
10.1 Eggrock Partners, Inc. 1999 Stock Option and Grant Plan.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (contained on the signature page hereto).
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* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-83343).