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As filed with the Securities and Exchange Commission on June 14, 2000
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
CrossWorlds Software, Inc.
(Exact name of Registrant as specified in its charter)
Delaware 94-3240149
(State of incorporation) (I.R.S. Employer Identification No.)
577 Airport Boulevard, Suite 800
Burlingame, CA 94010
(Address of principal executive offices)
_______________________
2000 Employee Stock Purchase Plan
2000 Directors' Stock Option Plan
1999 Executive Stock Plan
1997 Stock Plan
1996 Stock Plan
(Full title of the Plans)
_______________________
Mark R. Kent
Chief Financial Officer
CrossWorlds Software, Inc.
577 Airport Boulevard, Suite 800
Burlingame, CA 94010
(650) 685-9000
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Jon E. Gavenman
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Maximum Amount Offering Maximum Amount of
to be Price Per Aggregate Registration
Title of Securities to be Registered Registered(1) Share Offering Price Fee
------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
2000 Employee Stock Purchase Plan
Common Stock,
$0.001 par value....................... 750,000 Shares $10.47(2) $7,852,000 $2,072.93
2000 Directors' Stock Option Plan
Common Stock,
$0.001 par value...................... 300,000 Shares $12.31(3) $3,693,000 $974.95
1999 Executive Stock Plan
Common Stock,
$0.001 par value...................... 3,886,149 Shares $7.84(4) $30,467,408.16 $8,043.40
Common Stock,
$0.001 par value...................... 91,975 Shares $12.31(3) $1,132,212.25 $298.90
1997 Stock Plan
Common Stock,
$0.001 par value...................... 3,864,239 Shares $4.70(4) $18,161,923.30 $4,794.75
Common Stock,
$0.001 par value...................... 2,466,168 Shares $12.31(3) $30,358,528.08 $8,014.65
1996 Stock Plan
Common Stock,
$0.001 par value...................... 24,098 Shares $0.15(4) $3,614.70 $0.95
TOTAL 11,382,629 Shares $91,669,186.49 $24,200.67
-----
</TABLE>
_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
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(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
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registration fee. The computation is based upon the average of the high
and low sale prices of the Common Stock as reported on The Nasdaq National
Market on June 13, 2000, multiplied by 85%, which is the percentage of the
trading purchase price applicable to purchases under the referenced Plan.
(3) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
June 13, 2000.
(4) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
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(a) The Registrant's Prospectus filed on June 2, 2000 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) Not Applicable.
(c) 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 Securities Exchange Act of 1934 (the "Exchange Act") on March
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6, 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 securities offered hereby 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.
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Item 5. Interests of Named Experts and Counsel. Not applicable.
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Item 6. Indemnification of Directors and Officers.
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The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with, and has obtained director and officer liability
insurance for, its officers and directors.
Item 7. Exemption from Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Auditors (see p. 6).
24.1 Powers of Attorney (see p. 5).
_______________
Item 9. Undertakings.
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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 purposes 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.
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 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.
Insofar as the 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 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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
CrossWorlds Software, Inc., a corporation organized and existing under the laws
of the State of Delaware, 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 Burlingame, State of California, on
this June 13, 2000.
CrossWorlds Software, Inc.
By: /s/ Mark R. Kent
----------------------------------
Mark R. Kent
Chief Financial Officer (Principal
Financial and Accounting Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Alfred J. Amoroso and Mark R. Kent,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Alfred J. Amoroso Chief Executive Officer, President and June 14, 2000
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Alfred J. Amoroso Director (Principal Executive Officer)
/s/ Mark R. Kent Chief Financial Officer and Senior Vice June 14, 2000
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Mark R. Kent President (Principal Financial and
Accounting Officer)
/s/ Katrina A. Garnett Chairman of the Board of Directors June 14, 2000
-----------------------
Katrina A. Garnett
/s/ Terence J. Garnett Director June 14, 2000
-----------------------
Terence J. Garnett
/s/ Frederick W. Gluck Director June 14, 2000
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Frederick W. Gluck
/s/ Andrew K. Ludwick Director June 14, 2000
-----------------------
Andrew K. Ludwick
/s/ Albert A. Pimentel Director June 14, 2000
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Albert A. Pimentel
Director June 14, 2000
_______________________
Colin F. Raymond
</TABLE>
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
[On Accountant Firm's Letterhead]
We consent to the incorporation by reference in the Registration Statement on
Form S-8 herein of our report dated January 24, 2000, related to the
consolidated balance sheets of CrossWorlds Software, Inc. and subsidiaries as of
December 31, 1999 and December 31, 1998, and the related consolidated statements
of operations, stockholders' equity (deficit), and cash flows for each of the
years in the three-year period ended December 31, 1999, and the related schedule
which reports appear in CrossWorlds Software, Inc.'s Registration statement on
Form S-1 dated June 2, 2000.
KPMG LLP
Mountain View, California
June 13, 2000
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INDEX TO EXHIBITS
Exhibit
Number
------
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of Independent Auditors (see p. 6).
24.1 Powers of Attorney (see p. 5).
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