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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE
AMENDMENT TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
webMethods, Inc.
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(Exact name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
54-1807654
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(I.R.S. Employer Identification No.)
3930 Pender Drive, Fairfax, Virginia 22030
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(Address of Principal Executive Offices) (Zip Code)
webMethods, Inc. Amended and Restated Stock Option Plan
Active Software, Inc. 1996 Stock Plan
Active Software, Inc. 1996A Stock Plan
Active Software, Inc. 1999 Stock Plan
Active Software, Inc. 1999 Directors' Stock Option Plan
Active Software, Inc. 1999 Employee Stock Purchase Plan
TransLink Software, Inc. Stock Option Plan
Alier, Inc. 1997 Stock Option Plan
Alier, Inc. 1996 Stock Option Plan
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(Full Title of the Plan)
Mr. Phillip Merrick
Chief Executive Officer
webMethods, Inc.
3930 Pender Drive
Fairfax, Virginia 22030
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(Name and Address of Agent for Service)
(703) 460-2500
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(Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price per Aggregate Offering Amount of
to be Registered Registered Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, 13,039,679 shares (1) $96.50 (2) $1,258,329,024 $332,199(3)
par value $.01 per
share
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</TABLE>
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(1) Includes 10,000,000 additional shares reserved for future issuance upon
exercise of stock options to be granted under the Registrant's Stock Option
Plan pursuant to increases in the number of shares of common stock reserved
for issuance under the plan approved on August 15, 2000. Also includes
3,039,679 shares subject to Active Software's options, 44,411 of which were
issued pursuant to the Active Software, Inc. 1996 Stock Plan, 1,193,936 of
which were issued pursuant to the Active Software, Inc. 1996A Stock Plan,
1,065,138 of which were issued pursuant to the Active Software, Inc. 1999
Stock Plan, 36,890 of which were issued pursuant to the Active Software,
Inc. 1999 Directors' Stock Option Plan, 647,087 of which are reserved for
issuance under the Active Software, Inc. 1999 Employee Stock Purchase Plan,
21,766 of which were issued pursuant to the TransLink Software, Inc. Stock
Option Plan, 9,143 of which were issued pursuant to the Alier, Inc. 1996
Stock Option Plan and 21,308 of which were issued pursuant to the Alier,
Inc. 1997 Stock Option Plan, all of which were assumed by the Registrant on
August 15, 2000, in connection with the Registrant's acquisition of Active
Software, Inc.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended
and based upon the average of the high and low prices reported on the
Nasdaq National Market on August 15, 2000.
(3) $369,258 previously paid with Registrant's Form S-8 filed August 17, 2000.
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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 Active Software, Inc. 1996 Stock Plan, Active
Software, Inc. 1996A Stock Plan, Active Software, Inc. 1999 Stock Plan, Active
Software, Inc. 1999 Directors' Stock Option Plan, Active Software, Inc. 1999
Employee Stock Purchase Plan, TransLink Software, Inc. Stock Option Plan, Alier,
Inc. 1997 Stock Option Plan and Alier, Inc. 1996 Stock Option 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.
webMethods, Inc. (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 (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission. The following documents, which are on file with the Securities and
Exchange Commission, are incorporated in this Registration Statement by
reference:
(a) The Registrant's annual report on Form 10-K for the year ended
March 31, 2000, filed on June 29, 2000, filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, which contains
audited financial statements for the Registrant's latest
fiscal year prior to the Registrant's acquisition of Active
Software, Inc.;
(b) The Registrant's Quarterly Reports on Form 10-Q for the period
ended September 30, 2000, filed on November 14, 2000, and for
the period ended June 30, 2000, filed on August 14, 2000;
(c) Current Reports on Form 8-K, filed on December 20, 2000,
October 30, 2000, October 25, 2000, September 25, 2000,
August 23, 2000 and May 24, 2000;
(d) The Registrant's Definitive Proxy Statement on Schedule 14A,
filed on July 21, 2000; and
(e) The description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A, filed
with the Commission under section 12 of the Exchange Act on
February 10, 2000, 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 offered hereby
have been sold or which deregisters all shares then remaining unsold,
shall be deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of 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 the purposes of this Registration Statement to the
extent a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference
herein modified 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.
Item 5. Interests of Named Experts and Counsel.
Shaw Pittman, a law partnership including professional
corporations that is located in McLean, Virginia, is outside counsel
for the Registrant and will pass upon the validity of the shares
offered hereunder. Jack L. Lewis, whose professional corporation is a
member of Shaw
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Pittman, serves as a member of the Registrant's Board of Directors and
is the corporate secretary. Mr. Lewis beneficially owns 464,656 shares
of the Registrant's common stock. Other individuals, whose professional
corporations are members of Shaw Pittman, beneficially own an aggregate
of 7,309 shares of the Registrant's common stock.
Item 6. Indemnification of Directors and Officers.
Article Seven of the Registrant's Fifth Amended and Restated
Certificate of Incorporation, as amended (the "Charter"), provides for
the indemnification of directors to the fullest extent permissible
under Delaware law.
Article Six of the Registrant's Amended and Restated Bylaws
provides for the indemnification of officers, directors and third
parties acting on behalf of the Registrant if such person acted in
good faith and in a manner reasonably believed to be in and not opposed
to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, the indemnified party had no reason to
believe his or her conduct was unlawful.
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.
In addition to indemnification provided for in the
registrant's Amended and Restated bylaws, the registrant has entered
into indemnification agreements with its directors and executive
officers to provide additional contractual assurances regarding the
scope of the indemnification set forth in the Registrant's Charter and
to provide additional procedural protections.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is
attached hereto and incorporated herein by reference.
Item 9. Undertakings.
1. The 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 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;
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(b) 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; and
(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.
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 Section 15(d) of the Exchange Act (and, where
applicable, each filing of any 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.
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 Securities and Exchange
Commission such indemnification against such liabilities
(other than 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 Post-Effective
Amendment to Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Fairfax, Virginia, on the 22nd day of
December, 2000.
WEBMETHODS, INC.
By: /s/ PHILLIP MERRICK
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Phillip Merrick
President and Chief Executive Officer
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 below.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ PHILLIP MERRICK Chairman of the Board, President and December 22, 2000
--------------------------- Chief Executive Officer
Phillip Merrick
/s/ MARY DRIDI Chief Financial Officer and Treasurer December 22, 2000
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Mary Dridi
* Director December 22, 2000
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Robert E. Cook
* Director December 22, 2000
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Chase Bailey
* Director December 22, 2000
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Gene Riechers
</TABLE>
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<TABLE>
<S> <C> <C>
* Director December 22, 2000
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Jack L. Lewis
* Director December 22, 2000
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Michael J. Levinthal
* Director December 22, 2000
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Robert T. Vasan
* Director December 22, 2000
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Dennis H. Jones
* Director December 22, 2000
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R. James Green
* Director December 22, 2000
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James P. Gauer
By: /s/ Mary Dridi
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Attorney-in-fact
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1* Fifth Amended and Restated Certificate of Incorporation of the Registrant
4.2** Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of the
Registrant
4.3** webMethods, Inc. Amended and Restated Stock Option Plan
4.4** Active Software, Inc. 1996 Stock Plan
4.5** Active Software, Inc. 1996A Stock Plan
4.6** Active Software, Inc. 1999 Stock Plan
4.7** Active Software, Inc. 1999 Directors' Stock Option Plan
4.8** Active Software, Inc. 1999 Employee Stock Purchase Plan
4.9** TransLink Software, Inc. Stock Option Plan
4.10** Alier, Inc. 1997 Stock Option Plan
4.11** Alier, Inc. 1996 Stock Option Plan
5.1** Opinion of Shaw Pittman
23.1** Consent of Shaw Pittman (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1** Power of Attorney (included on the signature page of this Registration Statement)
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement on Form
S-1, as amended (File No. 333-91309)
** Previously filed
