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As filed with the Securities and Exchange Commission on August 9, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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EVOLVE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 7372 94-3219745
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
1400 65th Street, Suite 100
Emeryville, CA 94608
(510) 428-6000
(Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices)
1995 STOCK OPTION PLAN
2000 STOCK PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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John P. Bantleman
Chief Executive Officer
Evolve Software, Inc.
1400 65th Street, Suite 100
Emeryville, CA 94608
(510) 428-6000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
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Copy to:
Barry E. Taylor, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this
Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, check the following box. [X]
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed
Maximum Proposed
Amount Offering Maximum
Title of Each Class of Securities to to be Price Aggregate Amount of
be Registered Registered Per Share Offering Price Registration Fee
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
1995 Stock Option Plan
Common Stock, $0.01 par value
(currently outstanding options) (1) ...... 2,857,447 $ 5.10 $14,572,980
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
1995 Stock Option Plan
Common Stock, $0.01 par value
(options available for future grant) (2) 71,920 $ 9.00 $ 647,280
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
Total 1995 Stock Option Plan shares
registered 2,929,367 -- $
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
2000 Stock Plan
Common Stock, $0.01 par value
(currently outstanding options) 0 0 0
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
2000 Stock Plan
Common Stock, $0.01 par value
(options available for future grant) (3) 4,000,000 $ 9.00 $36,000,000
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
Total 2000 Stock Plan shares registered 4,000,000 -- $36,000,000
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
2000 Employee Stock Purchase Plan
Common Stock, $0.01 par value (4)......... 2,000,000 $ 9.00 $18,000,000
------------------------------------------ ----------------------- ---------------------- ---------------------- -------------------
Total Registration Fees -- -- $69,220,260 $18,275.00
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(1) The computation is based upon the weighted average exercise price per share
of $5.10 as to 2,857,447 outstanding but unexercised options to purchase
Common Stock under the 1995 Stock Option Plan (the "Currently Outstanding
Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
remaining 71,920 shares of Common Stock authorized for issuance pursuant
to the 1995 Stock Option Plan solely for the purpose of calculating the
registration fee. No options have been granted with respect to such shares.
The computation is based upon the intended offering price to the public of
the Company's Common Stock in the Company's initial public stock offering
because the price at which the options to be granted in the future may be
exercised is not currently determinable, and the Company's Common Stock has
not yet commenced trading on the Nasdaq Stock Market.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 as to the
4,000,000 shares of Common Stock authorized for issuance pursuant to the
2000 Stock Plan solely for the purpose of calculating the registration fee.
No options have been granted with respect to such shares. The computation
is based upon the intended offering price to the public of the Company's
Common Stock in the Company's initial public stock offering because the
price at which the options to be granted in the future may be exercised is
not currently determinable, and the Company's Common Stock has not yet
commenced trading on the Nasdaq Stock Market.
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the intended offering price
to the public of the Company's Common Stock in the Company's initial public
stock offering because the price at which the options to be granted in the
future may be exercised is not currently determinable, and the Company's
Common Stock has not yet commenced trading on the Nasdaq Stock Market.
Pursuant to the Employee Stock Purchase Plan, which plan is incorporated by
reference herein, the Purchase Price of a share of Common Stock shall mean
an amount equal to 85% of the Fair Market Value of a share of Common Stock
on the Enrollment Date or the Exercise Date, whichever is lower.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The audited financial statements for the Registrant for the
fiscal years ended June 30, 1998, 1999 and 2000, each as
contained in the on Form S-1 (File No. 333-32796), effective
August 8, 2000.
(b) The description of the Common Stock of the Registrant that is
contained in the Registration Statement on Form 8-A filed
pursuant to Section 12 of the Exchange Act on July 26, 2000.
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing
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 the Registration Statement and to be part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law permits a
corporation to include in its charter documents, and in agreements between the
corporation and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law. Article
Ninth of the Company's Amended and Restated Certificate of Incorporation
provides for the indemnification of directors to the fullest extent permissible
under Delaware law. Article 6 of the Company'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. The
Company has entered into indemnification agreements with its directors, in
addition to indemnification provided for in the registrant's Amended and
Restated Bylaws, and intends to enter into indemnification agreements with any
new directors in the future.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed on the accompanying Index to Exhibits are filed as
part hereof, or incorporated by reference into, this Registration Statement.
(See Exhibit Index below).
II-1
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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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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 an initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Act and
will be governed by the final adjudication of such issue.
II-2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Emeryville, State of California on August 8, 2000.
EVOLVE SOFTWARE, INC.
By: /s/ John P. Bantleman
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John P. Bantleman
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John P. Bantleman, Douglas S. Sinclair
and J. Russell DeLeon, jointly and severally, his or her attorneys-in-fact, each
with the power of substitution, for him or her 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
<S> <C> <C>
/s/ John P. Bantleman President, Chief Executive Officer August 8, 2000
------------------------------------------------ and Director (Principal
John P. Bantleman Executive Officer)
/s/ Douglas S. Sinclair Chief Financial Officer (Principal August 8, 2000
------------------------------------------------- Financial Officer)
Douglas S. Sinclair
/s/ Kenneth J. Bozzini Director of Finance, Corporate August 8, 2000
------------------------------------------------- Controller (Principal Accounting
Kenneth J. Bozzini Officer)
/s/ Jeffrey M. Drazan Director August 8, 2000
-------------------------------------------------
Jeffrey M. Drazan
/s/ Judith H. Hamilton Director August 8, 2000
-------------------------------------------------
Judith H. Hamilton
/s/ John R. Oltman Director August 8, 2000
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John R. Oltman
/s/ Paul Rochester Director August 8, 2000
-------------------------------------------------
Paul Rochester
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II-4
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INDEX TO EXHIBITS
Exhibit Number Exhibit Document
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3.1* Amended and Restated Certificate of Incorporation of
Registrant
3.2* Amended and Restated Bylaws of Registrant
10.5* 1995 Stock Option Plan
10.6* 2000 Stock Plan
10.7* 2000 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered (Counsel to the Registrant)
23.1 Consent of PricewaterhouseCoopers LLP (Independent
Accountants)
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (contained in Exhibit 5.1
hereto)
24.1 Power of Attorney (see page II-4)
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* Incorporated by reference to the Company's Registration Statement on Form S-1
(File No. 333-32796), effective August 8, 2000.
