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Filed with the Securities and Exchange Commission on April 21, 2000
Registration No.333-________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Agile Software Corporation
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(Exact name of registrant as specified in its charter)
Delaware 77-0397905
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
One Almaden Boulevard
San Jose, California 95113
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(Address of principal executive offices) (Zip code)
Agile Software Corporation
2000 Nonstatutory Stock Option Plan
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(Full title of the plan)
Bryan D. Stolle
President, Chief Executive Officer and Chairman of the Board
Agile Software Corporation
One Almaden Boulevard
San Jose, California 95113
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 975-3900.
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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CALCULATION OF REGISTRATION FEE
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Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price aggregate offering Amount of
registered/1/ registered/2/ per share/3/ price/3/ registration fee
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<S> <C> <C> <C> <C>
2000 Nonstatutory Stock Option Plan
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Common Stock 5,504,451 $23.15 $ 127,428,040.65
Par Value $0.001 495,549 $64.70 $ 32,062,020.30
TOTALS 6,000,000 $ 159,490,060.95 $42,105.37
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1 The securities to be registered include options and rights to acquire
Common Stock.
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 2000 Nonstatutory Stock Option Plan, the price is computed on the
basis of the weighted average exercise price. As to the remaining shares under
the 2000 Nonstatutory Stock Option Plan, the $23.15 price is based upon the
average of the high and low prices of the Common Stock on April 17, 2000, as
reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Agile Software Corporation (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 April
30, 1999. The prospectus is included in the Company's Registration Statement on
Form S-1/A (No. 333-91243, filed December 13, 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-A-12G filed on August 17, 1999 under
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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
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The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Legal Opinion. The validity of the shares of Common Stock to be
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offered hereunder has been passed upon for the Company by Gray Cary Ware &
Freidenrich, A Professional Corporation ("GCWF"). As of April 12, 2000 certain
attorneys of GCWF owned 2400 shares of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers
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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 the 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
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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 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
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
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:
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(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
(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
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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
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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 April 18, 2000.
AGILE SOFTWARE CORPORATION
By: /s/ Thomas P. Shanahan
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Thomas P. Shanahan
Executive Vice President,
Chief Financial Officer and
Secretary
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SIGNATURES AND POWER OF ATTORNEY
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The officers and directors of Agile Software Corporation whose signatures
appear below, hereby constitute and appoint Bryan D. Stolle and Thomas P.
Shanahan, 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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Bryan D. Stolle Chairman of the Board,
- ------------------------------- Chief Executive Officer, President April 17, 2000
Bryan D. Stolle and Director
(Principal Executive Officer)
/s/ Thomas P. Shanahan Executive Vice President,
- ------------------------------- Chief Financial Officer, April 17, 2000
Thomas P. Shanahan Secretary and Director
(Principal Financial and Accounting
Officer)
/s/ Klaus-Dieter Laidig Director April 18, 2000
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Klaus-Dieter Laidig
/s/ Michael Moritz Director April 18, 2000
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Michael Moritz
/s/ James L. Patterson Director April 18, 2000
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James L. Patterson
/s/ Nancy J. Schoendorf Director April 18, 2000
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Nancy J. Schoendorf
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EXHIBIT INDEX
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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 on August 2, 1999 ( No. 333-
81387)
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 on August 2, 1999 (No. 333-81387)
4.4 Agreement and Plan of Reorganization dated August 17, 1999 between Agile
Software Corporation, a California corporation, and Delaware Agile
Software Corporation, a Delaware corporation, is incorporated by reference
to Exhibit 2.1 to the Company's Form 10-Q for the quarter-ended July 31,
1999 filed with the Securities and Exchange Commission on September 14,
1999 (File No. 000-27071)
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 KPMG LLP, Independent Accountants
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP APPEARS HERE]
April 18, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Agile Software Corporation, 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 6,000,000 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the Company's 2000 Nonstatutory Stock Option Plan (the "Plan").
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.
Based on such examination, we are of the opinion that the 6,000,000 shares of
Common Stock which may be issued pursuant to the Plan 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 Plan, 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
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
Consent of Independent Accountants
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated May 28, 1999, except for Note 8, which
is as of August 16, 1999, relating to the consolidated financial statements of
Agile Software Corporation, which appears in Agile Software Corporation's
Registration Statement on Form S-1 (No. 333-91243).
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
April 18, 2000
1
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EXHIBIT 23.3
Board of Directors
Agile Software Corporation
Consent of Independent Accountants
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We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Agile Software Corporation of our report dated June 18,
1999, except as to Note 11, which is as of October 10, 1999, with respect to the
balance sheets of Digital Market, Inc. as of March 31, 1999 and 1998 and the
related statements of operations, shareholders' equity (deficit), and cash flows
for each of the years in the three-year period ended March 31, 1999 which report
appears in the Registration Statement (333-91243) on Form S-1/A of Agile
Software Corporation. Our report dated June 18, 1999, except as to Note 11,
which is as of October 10, 1999, contains an explanatory paragraph that states
that the Company has suffered recurring losses from operations since inception
and has an accumulated deficit, which raises substantial doubt about its ability
to continue as a going concern. The financial statements do not include any
adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
Mountain View, California
April 19, 2000
