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As Filed with the Securities and Exchange Commission on February 9, 2000
Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Calico Commerce, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 77-0373344
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
333 West San Carlos Street, Suite 300
San Jose, CA 95110
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(Address of principal executive offices) (Zip code)
Calico Commerce, Inc.
1995 Stock Option Plan, 1997 Stock Option Plan,
and 1999 Employee Stock Purchase Plan, and
Options Granted Under the FirstFloor Software, Inc.
1993 Stock Option Plan and Assumed By
Calico Commerce, Inc., and
Options Granted Under the ConnectInc.com, Co.
1989 Stock Option Plan, 1996 Stock Option Plan,
1996 Directors Stock Option Plan and
1999 Stock Option Plan For Non-Employee Directors
and Advisors and
Assumed By Calico Commerce, Inc.
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(Full title of the plan)
Alan P. Naumann
Calico Commerce, Inc.
333 West San Carlos Street, Suite 300
San Jose, CA 95110
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 975-7400.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
Securities to be Amount to be offering price aggregate Amount of
registered(1) registered(2) per share(3) offering price(3) registration fee
- ---------------- --------- -------- --------------- ----------
<S> <C> <C> <C> <C>
1995 Stock Option Plan
Common Stock 92,875 $ .0394 $ 3,659.28
Par Value $0.001
1997 Stock Option Plan
Common Stock 6,665,284 $10.0105 $66,722,825.48
Par Value $0.001 1,684,754 $44.1563 $74,392,503.05
1999 Employee Stock Purchase Plan
Common Stock 750,000 $37.5328 $28,149,600.00
Par Value $0.001
Assumed Options: FirstFloor 1993 Stock Option Plan
Common Stock 21,588 $ 2.5725 $ 55,535.13
Par Value $0.001
Assumed Options: ConnectInc.com 1989 Stock Option Plan
Common Stock 16,720 $25.6790 $ 429,352.88
Par Value $0.001
Assumed Options: ConnectInc.com 1996 Stock Option Plan
Common Stock 198,171 $19.5062 $ 3,865,563.16
Par Value $0.001
Assumed Options: ConnectInc.com 1996 Directors' Stock Option Plan
Common Stock 1,134 $56.0494 $ 63,560.02
Par Value $0.001
Assumed Options: ConnectInc.com 1999 Stock Option Plan for
Non-Employee Directors and Advisors
Common Stock 4,050 $30.8642 $ 125,000.01
Par Value $0.001
TOTALS 9,434,576 $173,807,599.01 $45,885.20
</TABLE>
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(1) The securities to be registered include options and rights to acquire Common
Stock.
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(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 1995 Stock Option Plan and 1997 Stock Option Plan, the price is
computed on the basis of the weighted average exercise price. As to the
remaining shares under the 1997 Stock Option Plan, the price is based upon the
average of the high and low prices of the Common Stock on February 11, 2000, as
reported on the Nasdaq National Market. The 1999 Employee Stock Purchase Plan
establishes a purchase price equal to 85% of the fair market value of the
Company's Common Stock, and, therefore, the price for shares under this plan is
based upon 85% of the average of the high and low prices of the Common Stock on
February 11, 2000, as reported on the Nasdaq National Market. The price of the
Assumed Options is computed on the basis of the weighted average exercise prices
of the Assumed Options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Calico Commerce, Inc. (the "Company") hereby incorporates by reference
in this registration statement the following documents:
(a) The Company's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act") containing audited
financial statements for the Company's latest fiscal year ended March 31, 1999.
The prospectus is included in the Company's Registration Statement on Form S-1
(No. 333-82907, filed initially on July 15, 1999).
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the registrant document referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A12G filed on September 23, 1999
under the Exchange Act, including any amendment or report filed for the purpose
of updating such description.
(d) The ConnectInc.com, Co. Annual Report (Form 10-K) for the year
ended December 31, 1998, filed with the Securities and Exchange Commission.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 102(b) of the Delaware General Corporation Law authorizes a
corporation to provide in its Certificate of Incorporation that a director of
the corporation shall not be personally liable to corporation or its
stockholders for monetary damages for breach or alleged breach of the director's
"duty of care." While this statute does not change directors' duty of care, it
enables corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on a director's duty of
loyalty or liability for acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law, illegal payment of
dividends or stock redemptions or repurchases, or for any transaction from
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which the director derives an improper personal benefit. As permitted by the
statute, the Company has adopted provisions in its Certificate of Incorporation
which eliminate to the fullest extent permissible under Delaware law the
personal liability of its directors to the Company and its stockholders for
monetary damages for breach or alleged breach of their duty of care.
Section 145 of the General Corporation Law of the State of Delaware
provides for the indemnification of officers, directors, employees and agents of
a corporation. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by
Delaware law, including those circumstances in which indemnification would
otherwise be discretionary under Delaware law. The Company's Bylaws also empower
it to enter into indemnification agreements with its directors and officers and
to purchase insurance on behalf of any person whom it is required or permitted
to indemnify. The Company has entered into agreements with its directors and
certain of its executive officers that require the Company to indemnify such
persons to the fullest extent permitted under Delaware law against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or an executive officer
of the Company or any of its affiliated enterprises. The indemnification
agreements also set forth certain procedures that will apply in the event of a
claim for indemnification thereunder.
Section 145 of the General Corporation Law of the State of Delaware
provides for indemnification in terms sufficiently broad to indemnify such
individuals, under certain circumstances, for liabilities (including
reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement; and
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(iii) 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;
provided, however, that paragraphs (1)(i) and (l)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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.
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.
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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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 San Jose, State of California, on February 8,
2000.
CALICO COMMERCE, INC.
By: /s/ ARTHUR F. KNAPP, JR.
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Arthur F. Knapp, Jr.
Vice President and Chief Financial Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Calico Commerce, Inc. whose signatures
appear below, hereby constitute and appoint Alan P. Naumann and Arthur F. Knapp,
Jr., and each of them, their true and lawful attorneys and agents, with full
power of substitution, each with power to act alone, to sign and execute on
behalf of the undersigned any amendment or amendments to this registration
statement on Form S-8, and each of the undersigned does hereby ratify and
confirm all that each of said attorney and agent, or their or his substitutes,
shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ ALAN P. NAUMANN President, Chief Executive February 8, 2000
- --------------------------------- Officer and Director
Alan P. Naumann (Principal Executive Officer)
/s/ ARTHUR F. KNAPP, JR. Vice President and Chief February 8, 2000
- --------------------------------- Financial Officer
Arthur F. Knapp, Jr. (Principal Financial and
Accounting Officer)
/s/ WILLIAM G. PASEMAN Vice President, Research and February 8, 2000
- --------------------------------- Development and Chairman of
William G. Paseman the Board
Director February __, 2000
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Joseph B. Costello
/s/ BERNARD J. LACROUTE Director February 8, 2000
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Bernard J. Lacroute
/s/ WILLIAM D. UNGER Director February 8, 2000
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William D. Unger
</TABLE>
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EXHIBIT INDEX
<TABLE>
<S> <C>
4.1 Certificate of Incorporation of the Company is incorporated by reference
to Exhibit 3.1 to the Company's Registration Statement on Form S-1 filed
with the Securities and Exchange Commission initially on July 15, 1999
(No. 333-82907)
4.2 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 filed with the Securities and
Exchange Commission initially on July 15, 1999 (No. 333-82907)
4.3 Agreement and Plan of Reorganization dated as of June 23, 1998 by and
among Calico Technology, Inc., Calico Acquisition Corporation, FirstFloor
Software, Inc., Certain Shareholders of FirstFloor Software, Inc., and
Certain Shareholders of Calico Technology, Inc. is incorporated by
reference to Exhibit 2.1 to the Company's Registration Statement on Form
S-1 filed with the Securities and Exchange Commission initially on July
15, 1999 (No. 333-82907)
4.4 Form of Agreement and Plan of Merger between Calico Technology, Inc., a
California corporation, and Calico Commerce, Inc., a Delaware corporation,
is incorporated by reference to Exhibit 2.2 to the Company's Registration
Statement on Form S-1 filed with the Securities and Exchange Commission
initially on July 15, 1999 (No. 333-82907)
4.5 Agreement and Plan of Merger by and among Calico Commerce, Inc.,
ConnectInc.com, Co., and Calico Acquisition, Inc., dated as of November
19, 1999, is incorporated by reference to Exhibit 2.1 to the Company's
Registration Statement on Form S-4 filed with the Securities and Exchange
Commission on December 20, 1999 (No. 333-93133)
4.6 The ConnectInc.com, Co. Annual Report for the year ended December 31,
1998, is incorporated by reference to such document filed with the
Securities and Exhange Commission on November 24, 1999.
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5) 23.2 Consent of
PricewaterhouseCoopers LLP, Independent Accountants 23.3 Consent of Ernst
& Young LLP, Independent Auditors, as to ConnectInc.com, Co.
23.4 Consent of Ernst & Young LLP, Independent Auditors, as to FirstFloor
Software, Inc.
24 Power of Attorney (included in signature pages to this registration
statement)
</TABLE>
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
February 9, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Calico Commerce, Inc., a Delaware corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 9,434,576 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Calico Commerce,
Inc. 1995 Stock Option Plan, 1997 Stock Option Plan and 1999 Employee Stock
Purchase Plan (collectively, the "Plans") and shares which may be issued
pursuant to the exercise of options granted under the FirstFloor Software, Inc.
1993 Stock Option Plan ( the "FirstFloor Plan") and assumed by the Company (the
"FirstFloor Assumed Options") pursuant to the Agreement and Plan of
Reorganization dated as of June 23, 1998, by and among the Company, FirstFloor
Software, Inc., Calico Acquisition Corporation, certain shareholders of
FirstFloor Software, Inc., and certain shareholders of the Company (the
"FirstFloor Reorganization Agreement"), and shares which may be issued pursuant
to the exercise of options granted under the ConnectInc.com, Co. 1989 Stock
Option Plan, 1996 Stock Option Plan, 1996 Directors' Stock Option Plan and 1999
Stock Option Plan for Non-Employee Directors and Advisors (collectively, the
"ConnectInc.com Plans") and assumed by the Company (the "ConnectInc.com Assumed
Options") pursuant to the Agreement and Plan of Merger dated as of November 19,
1999, by and among the Company, ConnectInc.com, Co. and Calico Acquisition, Inc.
(the "ConnectInc.com Merger Agreement").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California, the corporation laws of
the State of Delaware and the federal law of the United States. As to matters of
Delaware corporation law, we have based our opinion solely upon our examination
of such laws and the rules and regulations of the authorities administering such
laws, all as reported in standard, unofficial compilations. We have not obtained
opinions of counsel licensed to practice in jurisdictions other than the State
of California.
<PAGE> 2
Based on such examination, we are of the opinion that the 9,434,576 shares of
Common Stock which may be issued pursuant to the Plans, the FirstFloor Assumed
Options and the ConnectInc.com Assumed Options are duly authorized shares of the
Company's Common Stock, and, when issued against receipt of the consideration
therefor in accordance with the provisions of the Plans, the FirstFloor Assumed
Options, the ConnectInc.com Assumed Options, the FirstFloor Reorganization
Agreement, the ConnectInc.com Merger Agreement, the FirstFloor Plan and the
ConnectInc.com Plans, respectively, will be validly issued, fully paid and
nonassessable. We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ GRAY CARY WARE & FREIDENRICH LLP
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GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated July 13, 1999, except for Note 12,
which is as of September 30, 1999, relating to the consolidated financial
statements of Calico Commerce, Inc., which appears in Calico Commerce Inc.'s
Registration Statement on Form S-1 (No. 333-82907).
/s/ PRICEWATERHOUSECOOPERS LLP
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PricewaterhouseCoopers LLP
San Jose, California
February 9, 2000
<PAGE> 1
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to Calico Commerce, Inc. 1995 Stock Option Plan, 1997 Stock
Option Plan, and 1999 Employee Stock Purchase Plan, and Options Granted Under
the FirstFloor Software, Inc. 1993 Stock Option Plan and Assumed By Calico
Commerce, Inc., and Options Granted Under the ConnectInc.com, Co. 1989 Stock
Option Plan, 1996 Stock Option Plan, 1996 Directors Stock Option Plan and 1999
Stock Option Plan For Non-Employee Directors and Advisors and Assumed By Calico
Commerce, Inc. of our report dated January 25, 1999, with respect to the
financial statements and the related financial statement schedule of
ConnectInc.com, Co. included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
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ERNST & YOUNG LLP
San Jose, California
February 10, 2000
<PAGE> 1
EXHIBIT 23.4
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to Calico Commerce, Inc. 1995 Stock Option Plan, 1997 Stock
Option Plan, and 1999 Employee Stock Purchase Plan, and Options Granted Under
the FirstFloor Software, Inc. 1993 Stock Option Plan and Assumed By Calico
Commerce, Inc., and Options Granted Under the ConnectInc.com, Co. 1989 Stock
Option Plan, 1996 Stock Option Plan, 1996 Directors Stock Option Plan and 1999
Stock Option Plan For Non-Employee Directors and Advisors and Assumed By Calico
Commerce, Inc. of our report dated April 10, 1998, with respect to the financial
statements of FirstFloor Software, Inc. included in the Registration Statement
(Form S-1) of Calico Commerce, Inc.
/s/ ERNST & YOUNG LLP
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ERNST & YOUNG LLP
Palo Alto, California
February 10, 2000
