AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRI 29, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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REGISTRATION STATEMENT
ON FORM S-8
UNDER
THE SECURITIES ACT OF 1933
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CLICKSOFTWARE TECHNOLOGIES LTD.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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ISRAEL NOT APPLICABLE
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
34 HABARZEL STREET
TEL AVIV, ISRAEL
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
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2000 SHARE OPTION PLAN, AS AMENDED
2000 EMPLOYEE SHARE PURCHASE PLAN
(FULL TITLE OF THE PLANS)
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DR. MOSHE BEN-BASSAT
CHIEF EXECUTIVE OFFICER
CLICKSOFTWARE TECHNOLOGIES LTD.
70 BLANCHARD ROAD
BURLINGTON, MA 01803
(781) 272-5903
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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COPIES TO:
JEFFREY D. SAPER, ESQ. RICHARD MANN, ESQ.
ALLISON B. SPINNER, ESQ. GROSS, KLEINHENDLER, HODAK, HALEVY,
WILSON SONSINI GOODRICH & ROSATI GREENBERG & CO.
PROFESSIONAL CORPORATION ONE AZRIELI CENTER
650 PAGE MILL ROAD CIRCULAR TOWER
PALO ALTO, CA 94304-1050 TEL AVIV 67021
ISRAEL
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
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Ordinary Shares, NIS 0.02 par value, to be
issued under the 2000 Share Option Plan,
as amended................................ 400,000 $3.09(1) $1,236,000 $156.60
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Ordinary Shares, NIS 0.02 par value, to be
issued under the 2000 Employee Share
Purchase Plan.............................. 250,000 $3.09 (1) $772,500 $97.88
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TOTAL: 650,000 $2,008,500 $254.48
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(1) Calculated in accordance with Rule 457(h) and Rule 457(c) under the Securities Act of 1933, as amended, solely for the purpose
of calculating the registration fee based on the price of $3.09 per share, which was the average of the high and low price per
Ordinary Share as reported on the Nasdaq SmallCap Market on April 27, 2004.
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CLICKSOFTWARE TECHNOLOGIES LTD.
REGISTRATION STATEMENT ON FORM S-8
On July 21, 2000, ClickSoftware Technologies Ltd. (the "Registrant" or
the "Company") filed a Registration Statement on Form S-8 (File No. 333-42000)
with the Securities and Exchange Commission (the "Commission") to register the
Registrant's Ordinary Shares that were reserved for issuance pursuant to, among
other plans, the Registrant's 2000 Share Option Plan (the "Plan") and the
Registrant's 2000 Employee Share Purchase Plan (the "ESPP").
The Registrant is filing this Registration Statement on Form S-8 to
register additional Ordinary Shares that have been reserved for issuance
pursuant to the Plan and the ESPP.
Pursuant to the evergreen provisions of the Plan, effective January 1,
2004, the number of the Registrant's Ordinary Shares reserved for issuance under
the Plan was increased by 400,000 shares.
Pursuant to the evergreen provisions of the ESPP, effective January 1,
2004, the number of the Registrant's Ordinary Shares reserved for issuance under
the ESPP was increased by 250,000 shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 2003 filed with the Commission on March 22, 2004 and amended on Form 10-K/A
filed on April 28, 2004.
(b) The Company's Registration Statement on Form 8-A filed
pursuant to Section 12 of the Securities and Exchange Act of 1934, as amended
(the "Exchange Act"), on June 19, 2000, and any further amendment or report
filed hereafter for the purpose of updating any such description.
(c) All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and 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 part hereof from the date of
filing such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers
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The Israeli Companies Law 1999 provides that an Israeli company cannot
exculpate an office holder from liability with respect to a breach of his duty
of loyalty, but may exculpate in advance an office holder from his liability to
the company, in whole or in part, with respect to a breach of his duty of care.
Our Articles of Association provide that, to the maximum extent permitted by the
Companies Law, we may
o enter into a contract for the insurance of the liability, in
whole or in part, of any of the following: a Director,
President, General Manager, Chief Executive Officer, Vice
President, Chief Financial Officer, any other manager directly
subordinate to the President, and any person who fills one of
the said positions in the Company, even if he carries a
different title (an "officer or director"),
o indemnify an officer or director post factum; and
o indemnify an officer or director in advance for the following
events
(i) any financial obligation imposed on an officer or
director in favor of a third party by a court
judment, including a compromise judgment approved by
court (provided that we approved the compromise in
advance) or an arbitrator's award approved by court
(provided that it was given pursuant to arbitration
agreed to by us in advance), for an act or omission
performed by an officer or director in his or her
capacity as such; and
(ii) reasonable legal expenses, including attorneys' fees,
expended by or charged to an officer or director or
adjudicated against an officer or director by a court
in a proceeding commenced against an officer or
director by the Company or on its behalf by another
person, or in a criminal charge from which an officer
or director was acquitted, or in a criminal charge
that does not require intent, in which an officer or
director was convicted, all for an act or omission
performed in his capacity as an officer or director.
Such indemnity shall apply in certain foreseeable events and
up to a feasible amount under the circumstances, as determined
by the Board of Directors.
These provisions are specifically limited in their scope by the Israeli
Companies Law 1999, which provides that a company may not indemnify an office
holder for, nor enter into an insurance contract that would provide coverage for
any monetary liability incurred as a result of, any of the following:
o a breach by the office holder of his duty of loyalty unless
the office holder acted in good faith and had a reasonable
basis to believe that the act would not prejudice the company;
o a breach by the office holder of his duty of care if such
breach was done intentionally or in disregard of the
circumstances of the breach or its consequences;
o any act or omission done with the intent to derive an illegal
personal benefit; or
o any fine levied against the office holder as a result of a
criminal offense.
In addition, pursuant to the Israeli Companies Law 1999,
indemnification of and procurement of insurance coverage for our office holders
must be approved by our audit committee and board of directors and, for
indemnification and insurance for directors, also by our shareholders.
We have obtained directors' and officers' liability insurance covering
our officers and directors for claims arising from wrongful acts they committed
in their capacity as an officer or a director.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT DESCRIPTION
NUMBER
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4.1(1) 2000 Share Option Plan, as amended
4.2(2) 2000 Employee Share Purchase Plan
5.1 Opinion of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.
23.1 Consent of Brightman Almagor & Co., Independent Auditor
23.2 Consent of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.
(contained in Exhibit 5.1)
24.1 Power of Attorney (included in signature page to this Registration
Statement)
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(1) Incorporated by reference to the Registrant's definitive proxy
statement filed on August 6, 2001.
(2) Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-30274), as amended, declared effective by
the Securities and Exchange Commission on June 21, 2000.
Item 9. Undertakings.
(a) 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 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 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.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of a
report by the registrant pursuant to Section 13(a) or Section 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.
(c) 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 Securities and Exchange
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 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 City of Burlington, State of Massachusetts, on April 29,
2004.
CLICKSOFTWARE TECHNOLOGIES LTD.
By: /S/ MOSHE BENBASSAT
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Moshe BenBassat
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Moshe BenBassat and Shmuel Arvatz,
jointly and severally, his attorneys-in-fact, each with full power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may 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 on April 29, 2004:
SIGNATURE TITLE
Chairman of the Board of Directors & Chief
/s/ Moshe Benbassat Executive Officer
- -------------------------- (Principal Executive Officer)
Moshe BenBassat
/s/ Shmuel Arvatz Chief Financial Officer (Principal
- -------------------------- Financial and Accounting Officer)
Shmuel Arvatz
/s/ Naomi Atsmon Director
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Naomi Atsmon
/s/ Israel Borovich Director
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Israel Borovich
/s/ Roni Einav Director
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Roni Einav
/s/ Dan Falk Director
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Dan Falk
/s/ James W. Thanos Director
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James W. Thanos
/s/ Gil Weiser Director
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Gil Weiser
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INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NUMBER
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4.1(1) 2000 Share Option Plan, as amended
4.2(2) 2000 Employee Share Purchase Plan
5.1 Opinion of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.
23.1 Consent of Brightman Almagor & Co., Independent Auditor
23.2 Consent of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.
(contained in Exhibit 5.1)
24.1 Power of Attorney (included in signature page to this Registration
Statement)
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(1) Incorporated by reference to the Registrant's definitive proxy
statement filed on August 6, 2001.
(2) Incorporated by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-30274), as amended, declared effective by
the Securities and Exchange Commission on June 21, 2000.
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