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Registration No._________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIRAGE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 38-3171505
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
177 Bovet Road, Suite 520
San Mateo, California 94402
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(Address of principal executive offices) (Zip code)
VIRAGE, INC.
1995 STOCK OPTION PLAN
1997 STOCK OPTION PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plans)
Paul G. Lego
President and Chief Executive Officer
Virage, Inc.
177 Bovet Road, Suite 520
San Mateo, California 94402
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 573-3210
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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Proposed Proposed
Title of maximum 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>
1995 Stock Option Plan
Common Stock, 154,851 $0.1802 $27,904.15
par value $0.001
1997 Stock Option Plan
Common Stock, 3,938,861 $7.567 $29,805,361.19
par value $0.001 2,546,933 $12.40625 $31,597,887.53
2000 Employee Stock
Purchase Plan
Common Stock, 1,100,000 $10.54531 $11,599,841.00
par value $0.001
TOTALS 7,740,645 $73,030,993.87 $19,280.18
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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 1995 Stock Option Plan and the 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
$12.40625 price is based upon the average of the high and low prices of
the Common Stock on September 5, 2000, as reported on the Nasdaq
National Market. The 2000 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 September 5, 2000, as reported on the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Virage, 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, 2000. The prospectus is included in the Company's Registration Statement on
Form S-1 (No. 333-96315, effective June 28, 2000).
(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 filed on June 27, 2000 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
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Legal Opinion. The validity of the shares of Common Stock to be
offered hereunder has been passed upon for the Company by Gray Cary Ware &
Freidenrich, LLP ("GCWF"). As of September 8, 2000, an investment partnership
and certain attorneys of GCWF owned an aggregate of 19,181 shares of the Common
Stock of the Company.
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
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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 contracts 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;
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(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
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 Mateo, State of California, on September 8,
2000.
VIRAGE, INC.
By: /s/ PAUL G. LEGO
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Paul G. Lego
President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Virage, Inc. whose signatures appear
below, hereby constitute and appoint Paul G. Lego and Alfred J. Castino, 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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Signature Title Date
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<S> <C> <C>
/s/ PAUL G. LEGO President and Chief Executive Officer September 8, 2000
--------------------------------- (Principal Executive Officer)
Paul G. Lego
/s/ ALFRED J. CASTINO Chief Financial Officer (Principal September 8, 2000
--------------------------------- Financial and Accounting Officer)
Alfred J. Castino
/s/ PHILIP W. HALPERIN Director September 8, 2000
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Philip W. Halperin
/s/ RAMESH JAIN Director September 8, 2000
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Ramesh Jain
/s/ STANDISH H. O'GRADY Director September 8, 2000
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Standish H. O'Grady
/s/ LAWRENCE K. ORR Director September 8, 2000
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Lawrence K. Orr
/s/ DON VASSEL Director September 8, 2000
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Don Vassel
/s/ WILLIAM H. YOUNGER, JR. Director September 8, 2000
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William H. Younger, Jr.
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EXHIBIT INDEX
4.1 Certificate of Incorporation of the Company is incorporated by reference
to Exhibit 3.4 to the Company's quarterly report on Form 10-Q filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended, as filed with the Securities and Exchange Commission
on August 8, 2000
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 pursuant to the
Securities Act of 1933, as amended, as filed with the Securities and
Exchange Commission on February 7, 2000 (No. 333-96315)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
