Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MRO Software, Inc.
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(Exact name of registrant as specified in its charter)
Massachusetts 04-2448516
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Crosby Drive, Bedford, Massachusetts 01730
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(Address of principal executive offices) (Zip Code)
MRO SOFTWARE, INC.
2002 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Craig Newfield
MRO Software, Inc.
100 Crosby Drive
Bedford, Massachusetts 01730
(781) 280-2000
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(Name and address, including
telephone number and area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock 750,000 $8.69 (1) $6,517,500 (1) $600
($.01 par value) shares
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(1) Estimated pursuant to Rule 457(c) and (h) based on the average of the
high and low sale prices of the common stock as reported on the Nasdaq Stock
Market on August 12, 2002.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated in this Registration Statement by reference:
a) Annual Report on Form 10-K for the fiscal year ended September 30, 2001
filed on December 28, 2001;
b) Quarterly Report on Form 10-Q for the fiscal quarter ended December 31,
2001, filed on February 14, 2002;
c) Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2002,
filed on May 15, 2002;
d) Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2002,
filed on August 14, 2002;
e) The Company's Current Reports on Form 8-K filed on June 6, 2002, July 12,
2002 and August12, 2002; and
f) The description of the Company's common stock contained in the registration
statement on Form 8-A filed on April 14, 1994, including all amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, 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 in this Registration
Statement 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.
The validity of the securities registered hereby is being passed upon for
the Company by Craig Newfield, Esq., General Counsel of the Company. Mr.
Newfield is the holder of 519 shares of Company Common Stock, and of employee
stock options to purchase up to 67,500 shares of Common Stock. He also
participates in the Company's 2002 Employee Stock Purchase Plan.
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The financial statements as of and for the three years ended September 30,
2001 incorporated in this Prospectus by reference to the Annual Report on Form
10-K for the year ended September 30, 2001, have been so incorporated in
reliance on the report of PricewaterhouseCoopers LLP, independent accountants,
given on the authority of said firm as experts in auditing and accounting.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6 of the Company's Amended and Restated Articles of Organization
provides that a director shall not have personal liability to the Company or its
stockholders for monetary damages arising out of the director's breach of
fiduciary duty as a director of the Company, to the maximum extent permitted by
Massachusetts Law. Section 13(b)(1 1/2) of Chapter 156B of the Massachusetts
Business Corporation Law provides that the articles of organization of a
corporation may state a provision eliminating or limiting the personal liability
of a director to a corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided, however, that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts of omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under section 61 or 62 of the Massachusetts
Business Corporation Law dealing with liability for unauthorized distributions
and loans to insiders, respectively, or (iv) for any transaction from which the
director derived an improper personal benefit.
Article 6 of the Company's Amended and Restated Articles of Organization
further provides that the Company shall, to the fullest extent authorized by
Chapter 156B of the Massachusetts General Laws, indemnify each person who is, or
shall have been, a director or officer of the Company or who is or was a
director or employee of the Company and is serving, or shall have served, at the
request of the Company, as director or officer of another organization or in any
capacity with respect to any employee benefit plan of the Company, against all
liabilities and expenses (including judgments, fines, penalties, amounts paid or
to be paid in settlement, and reasonable attorneys' fees) imposed upon or
incurred by any such person in connection with, or arising out of, the defense
or disposition of any action, suit or other proceeding whether civil or
criminal, in which they may be involved by reason of being or having been such a
director or officer or as a result of service with respect to any such employee
benefit plan. Section 67 of Chapter 156B of the Massachusetts General Laws
authorizes a corporation to indemnify its directors, officers, employees and
other agents unless such person shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that such action was in
the best interests of the corporation or, to the extent such matter related to
service with respect to an employee benefit plan, in the best interests of the
participants or beneficiaries of such employee benefit plan.
The effect of these provisions would be to permit indemnification by the
Company for, among other liabilities, liabilities arising out of the Securities
Act of 1933, as amended.
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Section 67 of the Massachusetts Business Corporation Law also affords a
Massachusetts corporation the power to obtain insurance on behalf of its
directors and officers against liabilities incurred by them in those capacities.
The Company has procured a directors' and officers' liability and company
reimbursement liability insurance policy that (i) insures directors and officers
of the Company against losses (above a deductible amount) arising from certain
claims made against them by reason of certain acts done or attempted by such
directors or officers and (ii) insures the Company against losses (above a
deductible amount) arising from any such claims, but only if the Company is
required or permitted to indemnify such directors or officers for such losses
under statutory or common law or under provisions of the Company's Amended and
Restated Articles of Organization or Restated By-Laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 Amended and Restated Articles of Organization of the Company (included
as Exhibit 3.3 to the Company's Registration Statement on Form S-1,
Registration No. 33-76420, and incorporated herein by reference) *
4.2 Restated By-Laws of the Company, as amended (included as Exhibit 3.5 to
the Quarterly Report on Form 10-Q for the fiscal quarter ended December
31, 2000, File No. 0-23852, and incorporated herein by reference) *
4.3 Specimen certificate for the Common Stock of the Company (included as
Exhibit 4.1 to the Company's Registration Statement on Form S-1,
Registration No. 33-76420, and herein by reference) *
4.4 Article 4B of the Amended and Restated Articles of Organization of the
Company (included as Exhibit 4.1 to the Company's Registration
Statement on Form S-1, Registration No. 33-76420, and incorporated
herein by reference) *
4.5 Rights Agreement dated as of January 27, 1998, between MRO Software,
Inc. and BankBoston, N.A. as Rights Agent (included as Exhibit 4 (a) to
the Company's Current Report on Form 8-K dated February 2, 1998, File
No.0-23852, and incorporated herein by reference) *
4.6 Form of Certificate of Designation of Series A Junior Participating
Preferred Stock of MRO Software, Inc. (included as Exhibit 4 (b) to the
Company's Current Report on Form 8-K dated February 2, 1998, File No.
0-23852, and incorporated herein by reference) *
4.7 Form of Rights Certificate (included as Exhibit 4 (c) to the Company's
Current Report on Form 8-K dated February 2, 1998, File No. 0-23852,
and incorporated herein by reference) *
4.8 MRO Software, Inc. 2002 Employee Stock Purchase Plan (filed as Appendix
B to the Company's definitive Proxy Statement for the Company's 2002
Annual Meeting of Stockholders, filed on January 29, 2002 and
incorporated herein by reference) *
5.1 Legal Opinion of Craig Newfield, Esq.**
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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23.1 Consent of PricewaterhouseCoopers LLP **
23.2 Consent of Craig Newfield, Esq. (contained in Exhibit 5.1)**
24 Power of Attorney (contained on Signature Page of this registration
statement)
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* Not filed herewith. In accordance with Rule 411 promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which are incorporated
by reference herein.
** Filed herewith.
ITEM 9. UNDERTAKINGS.
1. 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 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.
2. The undersigned registrant hereby undertakes:
(a) 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;
(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 Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 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 2 (a)(1)(i) and 2 (a)(1)(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
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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
herein.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(c) 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the 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 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 the Town of Bedford, Commonwealth of Massachusetts, on this 15th
day of August, 2002.
MRO SOFTWARE, INC.
By: /s/ Norman E. Drapeau, Jr.
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Norman E. Drapeau, Jr.
President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Norman E. Drapeau, Jr., Peter J. Rice and
Craig Newfield, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and all 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 which they, or any of them, may deem necessary or advisable
to be done in connection with this registration statement, 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 any
substitute or substitutes for any or all of them, may lawfully 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 and on the dates indicated.
Signature Title Date
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/s/ Norman E. Drapeau, Jr. President, Chief Executive August 15, 2002
- -------------------------- Officer and Director
Norman E. Drapeau, Jr. (principal executive officer)
/s/ Peter J. Rice Chief Financial Officer, August 15, 2002
- -------------------------- Executive Vice President, Finance
Peter J. Rice and Administration and Treasurer
(principal financial and accounting officer)
/s/ Robert L. Daniels Executive Chairman of the Board August 15, 2002
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Robert L. Daniels
/s/ Stephen B. Sayre Director August 15, 2002
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Stephen B. Sayre
/s/ Alan L. Stanzler Director August 15, 2002
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Alan L. Stanzler
/s/ Richard P. Fishman Director August 15, 2002
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Richard P. Fishman
/s/ John A. McMullen Director August 15, 2002
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John A. McMullen
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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5.1 Legal Opinion of Craig Newfield, Esq.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Craig Newfield, Esq. (contained in Exhibit 5.1)
24 Power of Attorney (contained on Signature Page of this registration
statement)