AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 14, 2007
REGISTRATION NO. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
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)
11 BEN GURION STREET
GIVAT SHMUEL, ISRAEL
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
------------------------
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)
------------------------
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
===================================================================================================================================
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
- -----------------------------------------------------------------------------------------------------------------------------------
Ordinary Shares, NIS 0.02 par value, to be
issued under the 2000 Share Option Plan,
as amended July 20,2004.................... 1,250,000 $3.30 4,125,000 $126
===================================================================================================================================
TOTAL: 1,250,000
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<FN>
(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 $3.30 per share, which was the
average of the high and low price per Ordinary Share as reported on the
Nasdaq Capital Market on March 13, 2007.
</FN>
===================================================================================================================================
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 addition,
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 the Registrant's Evergreen Mechanism, the number of
shares reserved under the 2000 Share Option Plan was increased by 450,000
Ordinary Shares effective January 1, 2006. On June 29, 2006, the Registrant
filed with the Commission a Registration Statement on Form S-8 (File No.
333-30827) to register an additional 450,000 Ordinary Shares of the Registrant
that may be issued pursuant to the 2000 Share Option Plan, as amended.
In accordance with the Registrant's Evergreen Mechanism, effective as of
January 1, 2007, our board of directors ratified the automatic increase in the
number of shares reserved under the 2000 Share Option Plan, as amended, by
1,250,000 Ordinary Shares.
The Registrant is filing this Registration Statement on Form S-8 to
register an additional 1,250,000 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
Registration Statements previously filed with the Commission relating to the
2000 Share Option Plan referred to above are incorporated by reference, except
as revised herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All information required by Part I to be contained in the prospectus is omitted
from this registration statement in accordance with Rule 428 and the
introductory note to Part I of Form S-8, in each case under the Securities Act
of 1933.
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 Reports on Form 6-K filed with the Commission on May 1, 2006,
June 14, 2006, July 26, 2006, November 1, 2006, November 30, 2006 and February
7, 2007;
(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 his or her capacity as an office holder 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. A company may also not exculpate a director in advance 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
- ----------- ------------------------------------------------------------------
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)
- ----------------------------
(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.
CLICKSOFTWARE TECHNOLOGIES LTD.
By: /S/ MOSHE BENBASSAT
------------------------------------
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 March 6, 2007
/s/ Moshe Benbassat & Chief Executive Office
- -------------------------- (Principal Executive Officer)
Moshe BenBassat
/s/ Shmuel Arvatz Chief Financial Officer (Principal March 6, 2007
- -------------------------- Financial and Accounting Officer)
Shmuel Arvatz
/s/ Naomi Atsmon Director March 6, 2007
- --------------------------
Naomi Atsmon
/s/ Israel Borovich Director March 6, 2007
- --------------------------
Israel Borovich
/s/ Roni Einav Director March 6, 2007
- --------------------------
Roni Einav
/s/ Dan Falk Director March 6, 2007
- --------------------------
Dan Falk
/s/ James W. Thanos Director March 6, 2007
- --------------------------
James W. Thanos
/s/ Gil Weiser Director March 6, 2007
- --------------------------
Gil Weiser
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ----------- ------------------------------------------------------------------
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)
- ----------------------------
(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.
EXHIBIT 5.1
Tel Aviv, March 13, 2007
ClickSoftware Technologies Ltd.
11 Ben Gurion Street
Givat Shmuel, Israel
RE: Registration on Form S-8
Ladies and Gentlemen:
We have acted as Israeli counsel to ClickSoftware Technologies Ltd., a
company organized under the laws of the State of Israel (the "Company"), in
connection with its filing of a registration statement on Form S-8 on or about
March 13, 2007 (the "Registration Statement") under the Securities Act of 1933,
as amended, relating to the registration of 1,250,000 of the Company's ordinary
shares, par value NIS 0.02 per share (the "Plan Shares"), to be issued under the
Company's 2000 Share Option Plan, as amended (the "2000 Plan").
In our capacity as counsel to the Company, we have examined originals or
copies, satisfactory to us, of the Company's (i) Articles of Association, (ii)
2000 Plan and (iii) resolutions of the Company's Board of Directors and
shareholders. In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals and the conformity with the original
documents of all documents submitted to us as copies or facsimiles. As to any
facts material to such opinion, to the extent that we did not independently
establish relevant facts, we have relied on certificates of public officials and
certificates of officers or other representatives of the Company. We are
admitted to practice law in the State of Israel and the opinion expressed herein
is expressly limited to the laws of the State of Israel.
On the basis of the foregoing, we are of the opinion that the Plan Shares
being registered pursuant to the Registration Statement, when issued and paid
for in accordance with the 2000 Plan and pursuant to agreements with respect to
the plans, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co.
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of ClickSoftware Technologies Ltd. on Form S-8 of our report dated February 16,
2006, appearing in the Annual Report on Form 20-F of ClickSoftware Technologies
Ltd. for the year ended December 31, 2005.
Brightman Almagor & Co.
Certified Public Accountants
A Member Firm Of Deloitte Touche Tohmatsu
Tel Aviv, Israel
March 11, 2007