AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON May 25, 2006
REGISTRATION NO. 333-30827
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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
(FULL TITLE OF THE PLANS)
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DR. MOSHE BEN-BASSAT
CHIEF EXECUTIVE OFFICER
CLICKSOFTWARE TECHNOLOGIES LTD.
35 CORPORATE DRIVE SUITE 140
BURLINGTON, MA 01803
(781) 272-5903
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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COPIES TO:
PHYLLIS KORFF, ESQ. RICHARD MANN, ESQ.
MICHAL BERKNER, ESQ. GROSS, KLEINHENDLER, HODAK, HALEVY,
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP GREENBERG &CO.
ONE TIMES SQUARE ONE AZRIELI CENTER
NEW YORK, NY 10036 CIRCULAR TOWER
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 July 20,2004.................... 450,000 $1.66(1) 747,000 $79.93
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TOTAL: 450,000
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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 $1.66 per share, which was the average of the high
and low price per Ordinary Share as reported on the Nasdaq SmallCap Market on May 23, 2006.
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EXPLANATORY NOTE
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 an
aggregate of 5,254,584 Ordinary Shares of the Registrant that may be issued
pursuant to the Registrant's 1996 Option Plan, 1998 Option Plan, 1999 Option
Plans, 2000 U.S. Option Plan, 2000 Israeli Plan, 2000 Share Option Plan, and
the 2000 Employee Share Purchase Plan.
Pursuant to the 2000 Share Option Plan, as amended, the number of
shares made available under the 2000 Share Option Plan will be automatically
increased on the first day of the Company's fiscal year to equal the lesser of:
(i) 5% of the outstanding ordinary shares on such date, (ii) 1,250,000 ordinary
shares, and (iii) an amount determined by the board of directors ("Evergreen
Mechanism"). Accordingly, the number of shares reserved under the 2000 Share
Option Plan was increased by 400,000 ordinary shares effective January 1, 2004.
In September 2003, our board of directors adopted a resolution to increase the
number of Ordinary Shares, made available under the 2000 Employee Share
Purchase Plan, by 250,000 ordinary shares.
On April 29, 2004, the Registrant filed with the Commission a
Registration Statement on Form S-8 (File No. 333-115003) to register an
additional 650,000 Ordinary Shares of the Registrant that may be issued
pursuant to the 2000 Share Option Plan, as amended, and the Company's 2000
Employee Share Purchase Plan.
In accordance with our Evergreen Mechanism, effective as of January 1,
2006, our board of directors resolved that the number of shares reserved under
the 2000 Share Option Plan, shall be increased by 450,000 ordinary shares.
The Registrant is filing this Registration Statement on Form S-8 to
register an additional 450,000 ordinary shares of the Company, which may be
issued upon the exercise of options which have been granted or may hereafter be
granted under the 2000 Share Option Plan.
Pursuant to General Instruction E to Form S-8, the contents of the
Prior Registration Statement are incorporated herein by reference, except for
Items 3, 6, and 8, which are being updated by this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
The information required by Item 1 is included in documents sent or
given to participants in the plan covered by this registration statement
pursuant to Rule 428(b)(1) of the Securities Act of 1933 (the "Securities
Act").
Item 2. Registrant Information and Employee Plan Annual Information
The written statement required by Item 2 is included in documents sent
or given to participants in the plan covered by this registration statement
pursuant to Rule 428(b)(1) of the Securities Act.
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
Commission:
(a) Annual Report on Form 20-F for the fiscal year ended December 31,
2005 filed with the Commission on April 24, 2006;
(b) Current Report on Form 6-K filed with the SEC on May 1, 2006;
(c) The description of the Registrant's Ordinary Shares contained
under the headings "Description of Share Capital," "Shares Eligible for Future
Sale" and "United States Federal Income Tax Considerations" contained in the
Registrant's Registration Statement on Form S-1 filed with the Commission on
June 1, 2000, including any amendment or report filed for the purpose of
updating such description;
(d) The Company's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Securities and Exchange Act of 1934 (the "Exchange Act"), on
June 19, 2000, and any further amendment or report filed hereafter for the
purpose of updating any such description; and
(e) 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 6. Indemnification of Directors and Officers
Our amended and restated articles of association allow us to
indemnify, exculpate and insure our office holders to the fullest extent
permitted under the Israeli Companies Law.
Under the Israeli Companies Law, a company may indemnify an office
holder against any monetary liability incurred in his or her capacity as an
office holder whether imposed on him or her or incurred by him or her in favor
of another person pursuant to a judgment, a settlement or an arbitrator's award
approved by court. A company also can indemnify an office holder against
reasonable litigation expenses, including attorneys' fees, incurred, whether or
not paid by him or her in his or her capacity as an office holder, in
proceedings instituted against him or her by the company, on its behalf or by a
third-party, in connection with criminal proceedings in which the office holder
was acquitted, or as a result of a conviction for a crime that does not require
proof of criminal intent.
In addition, a company may indemnify an office holder against
reasonable legal fees, including attorney's fees, incurred, whether or not paid
by him, by him or her in consequence of an investigation or proceeding
instituted against him or her by an authority that is authorized to conduct
such investigation or proceeding, and that was resolved without an indictment
against him or her and without imposing on him or her financial obligation as
an alternative of a criminal proceeding, or that was resolved without filing an
indictment against him or her but with the imposition on him or her of a
financial obligation as an alternative to a criminal proceeding in respect of
an offense that does not require the proof of criminal intent.
A company may indemnify an office holder in respect of some
liabilities, either in advance of an event or following an event. If a company
undertakes to indemnify an office holder in advance of an event, the
indemnification, other than litigation expenses, must be limited to foreseeable
events in light of the company's actual activities when the company undertook
such indemnification, and reasonable amounts or standards, as determined by the
board of directors.
A company may obtain insurance for an office holder against
liabilities incurred in his or her capacity as an office holder. These
liabilities include a breach of duty of care to the company or a third-party,
including a breach arising out of negligent conduct of the office holder, a
breach of duty of loyalty and any monetary liability imposed on the office
holder in favor of a third-party.
A company may exculpate an office holder from a breach of duty of care
in advance of that breach. Our articles of association provide for exculpation
both in advance or retroactively, to the extent permitted under Israeli law. A
company may not exculpate an office holder from a breach of duty of loyalty
towards the company or from a breach of duty of care concerning dividend
distribution or a purchase of the company's shares by the company or other
entities controlled by the company.
An Israeli company may only indemnify or insure an office holder
against a breach of duty of loyalty to the extent that the office holder acted
in good faith and had reasonable grounds to assume that the action would not
prejudice the company. In addition, an Israeli company may not indemnify,
insure or exculpate an office holder against a breach of duty of care if
committed intentionally or recklessly (excluding mere negligence), or committed
with the intent to derive an unlawful personal gain, or for a fine or forfeit
levied against the office holder in connection with a criminal offense.
As permitted under Israeli law, we have agreements whereby we
indemnify our officers and directors for certain events or occurrences while
the officer or director is, or was serving, at our request in such capacity.
The indemnification period covers all pertinent events and occurrences during
the officer's or director's lifetime. We have director and officer insurance
coverage that may limit our exposure and may enable us to recover a portion of
any future amounts paid. In addition to the insurance coverage, we have agreed
to indemnify our directors in an amount not to exceed $20 million, for all
persons and all events to be indemnified, for certain events and occurrences
while the director is, or was, serving, at our request in such capacity.
Item 8. Exhibits.
EXHIBIT
NUMBER DESCRIPTION
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4.1(1) 2000 Share Option Plan, as amended
4.2(2) Articles of Association of ClickSoftware Technologies Ltd.,
amended and restated as of May 28, 2003
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 June 21, 2004.
(2) Incorporated by reference to the Registrant's report on Form 10-Q
filed with the Commission on August 13, 2003.
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 the
registrant's annual report 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.
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 Burlington, State of Massachusetts, on May 25, 2006.
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, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
SIGNATURE TITLE DATE
Chairman of the Board of Directors May 25, 2006
/s/ Moshe Benbassat & Chief Executive Office
- -------------------------- (Principal Executive Officer)
Moshe BenBassat
/s/ Shmuel Arvatz Chief Financial Officer (Principal May 25, 2006
- -------------------------- Financial and Accounting Officer)
Shmuel Arvatz
/s/ Naomi Atsmon Director May 25, 2006
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Naomi Atsmon
/s/ Israel Borovich Director May 25, 2006
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Israel Borovich
/s/ Roni Einav Director May 25, 2006
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Roni Einav
/s/ Dan Falk Director May 25, 2006
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Dan Falk
/s/ James W. Thanos Director May 25, 2006
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James W. Thanos
/s/ Gil Weiser Director May 25, 2006
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Gil Weiser
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1(1) 2000 Share Option Plan, as amended
4.2(2) Articles of Association of ClickSoftware Technologies Ltd.,
amended and restated as of May 28, 2003
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 June 21,2004.
(2) Incorporated by reference to the Registrant's report on Form 10-Q
filed with the Commission on August 13, 2003.