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As filed with the Securities and Exchange Commission on September 27, 2000
Registration No. 333-38888
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
AVANTGO, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3275789
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1700 South Amphlett Boulevard, Suite 300
San Mateo, California 94402
(Address of principal executive offices, including zip code)
AVANTGO, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
AVANTGO, INC. 2000 STOCK INCENTIVE PLAN
AVANTGO, INC. 1997 STOCK OPTION PLAN
GLOBALWARE COMPUTING, INC. STOCK OPTION PLAN
(Full title of the plans)
Richard Owen
Chief Executive Officer
AvantGo, Inc.
1700 South Amphlett Boulevard, Suite 300
San Mateo, California 94402
(650) 638-3399
(Name, address and telephone number, including area code, of agent for service)
_______________
Copies to:
Mark S. Albert, Esquire
Ralph L. Arnheim, III, Esquire
Perkins Coie LLP
135 Commonwealth Drive, Suite 250
Menlo Park, CA 94025-1105
_______________
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CALCULATION OF REGISTRATION FEE
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Title of Securities Number to Be Proposed Maximum Proposed Maximum Amount of
to Be Registered Registered(1) Offering Price Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $0.0001
per share, subject to
outstanding options under the:
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AvantGo, Inc. 1997 Stock Option Plan 12,282,350(2) $ 4.23 (2) $ 51,898,880.00 $ 13,701.30
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Globalware Computing, Inc. 180,438 $ 0.609(2) $ 109,886.74 $ 29.01
Stock Option Plan
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AvantGo, Inc. 2000 Employee Stock Purchase Plan 350,000 $ 12.00(3) $ 4,200,000.00 $ 1,108.80
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AvantGo, Inc. 2000 Stock Incentive Plan 1,500,000 $ 12.00(3) $ 18,000,000.00 $ 4,752.00
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TOTAL: $ 74,208,766.74 $ 19,591.11
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(1) Based on the number of shares reserved for issuance pursuant to each of the
registrant's employee benefit plans listed herein, together with an
indeterminate number of additional shares which may be necessary to adjust
the number of shares reserved for issuance pursuant to such employee benefit
plans as the result of any future stock split, stock dividend or similar
adjustment of the registrant's outstanding Common Stock. With respect to the
AvantGo 1997 Stock Option Plan, the number represents the total number of
options reserved for issuance under such plan less the number of options
exercised by the holder thereof that were subsequently repurchased by the
registrant.
(2) Computed pursuant to Rule 457(h) under the Securities Act of 1933, as
amended. With respect to the AvantGo, Inc. 1997 Stock Option Plan, the
proposed maximum offering price of $4.23 represents the weighted average of
the exercise prices of currently outstanding options, which range from $0.30
to $12.00, and the price of future grants (assuming such grants are made at
the registrant's initial public offering price of $12.00). With respect to
the Globalware Computing, Inc. Stock Option Plan, the proposed maximum
offering price of $0.609 represents the weighted average of the exercise
prices of currently outstanding options, which range from $0.12 to $2.33
per share.
(3) Estimated as of the filing date of this Registration Statement solely for
the purpose of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933, as amended. The proposed maximum offering
price is $12.00, which is the initial offering price of the Common Stock of
the Registrant's initial public offering.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"), which contains
audited financial statements of the registrant; and
(b) The description of the registrant's Common Stock contained in the
Registration Statement on Form 8-A filed on September 18, 2000, under Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendments or reports filed for the purpose of updating such
description.
All documents filed by the registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, and prior to the filing of
a post-effective amendment which indicates that the securities offered hereby
have been sold or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify its directors and officers, as well as other
employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification in which the person seeking
indemnification has been found liable to the corporation. The statute provides
that it is not exclusive of other indemnification that may be granted by a
corporation's charter, bylaws, disinterested director vote, stockholder vote,
agreement or otherwise.
Section 6.1 of the Registrant's Bylaws and Section 43 of the Registrant's
Amended & Restated Bylaws (to take effect upon the effective date of
Registrant's Initial Public Offering) require
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indemnification to the full extent permitted under Delaware law as it now exists
or may hereafter be amended. Subject to any restrictions imposed by Delaware
law, the bylaws provide an unconditional right to indemnification for all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) actually and
reasonably incurred or suffered by any person in connection with any actual or
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative (including, to the extent permitted by law, any derivative
action) by reason of the fact that such person is or was serving as a director
or officer of the Registrant or that, being or having been a director or officer
of the Registrant, such person is or was serving at the request of the
Registrant as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan.
The bylaws also provide that the Registrant may, by action of its Board of
Directors, provide indemnification to its employees and agents with the same
scope and effect as the foregoing indemnification of directors and officers.
Section 102(b)(7) of the DGCL permits 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 of fiduciary duty as a director, except for liability for (a) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(b) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (d) any transaction from which the director
derived an improper personal benefit.
Article VII of the Registrant's Sixth Amended & Restated Certificate of
Incorporation and Article IX of the Registrant's Seventh Amended & Restated
Certificate of Incorporation (to take effect upon the effective date of
Registrant's Initial Public Offering) provide that to the full extent that the
DGCL, as it now exists or may hereafter be amended, permits the limitation or
elimination of the liability of directors, a director of the Registrant shall
not be liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director. Any amendment to or repeal of such
articles shall not adversely affect any right or protection of a director of the
Registrant for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common
Stock being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.4 Consent of Perkins Coie LLP (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 AvantGo, Inc. 2000 Employee Stock Purchase Plan (incorporated by
reference to Exhibit 10.5 to the Registration Statement on Form
S-1)
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99.2 AvantGo, Inc. 2000 Stock Incentive Plan (incorporated by
reference to Exhibit 10.6 to the Registration Statement on Form
S-1)
99.3 AvantGo, Inc. 1997 Stock Option Plan (incorporated by reference
to Exhibit 10.3 to the Registration Statement on Form S-1)
99.4 Globalware Computing, Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.56 to the Registration Statement on Form
S-1, as amended)
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:
(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 this 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 this Registration
Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 this 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, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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.
C. 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
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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 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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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 San Mateo, State of California, on the 27th day of
September, 2000.
AVANTGO, INC.
/s/ Richard Owen
By:______________________________
Richard Owen
Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Richard Owen as attorney-in-fact with full power of substitution, to execute in
the name and on the behalf of each person, individually and in each capacity
stated below, and to file, any and all amendments to this Registration
Statement, including any and all post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 27th day of September, 2000.
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Name Title Date
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<S> <C> <C>
Principal Executive Officer:
/s/ Richard Owen Chief Executive Officer and September 27, 2000
------------------------------------- Director
Richard Owen
Principal Financial and Principal
Accounting Officer:
/s/ David Cooper Chief Financial Officer September 27, 2000
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David Cooper
Principal Executive Officer:
/s/ Felix Lin Chairman of the Board and September 27, 2000
------------------------------------- Director
Felix Lin
Additional Directors:
/s/ Christopher B. Hollenbeck Director September 27, 2000
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Christopher B. Hollenbeck
/s/ Dennis Jones Director September 27, 2000
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Dennis Jones
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Name Title Date
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<S> <C> <C>
/s/ Robert J. Lesko Director September 27, 2000
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Robert J. Lesko
/s/ Linus Upson Director September 27, 2000
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Linus Upson
/s/ Gregory Waldorf Director September 27, 2000
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Gregory L. Waldorf
/s/ Jeffrey Webber Director September 27, 2000
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Jeffrey T. Webber
/s/ Peter H. Ziebelman Director September 27, 2000
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Peter H. Ziebelman
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the Common
Stock being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.4 Consent of Perkins Coie LLP (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 AvantGo, Inc. 2000 Employee Stock Purchase Plan (incorporated
by reference to Exhibit 10.5 to the Registration Statement on
Form S-1)
99.2 AvantGo, Inc. 2000 Stock Incentive Plan (incorporated by
reference to Exhibit 10.6 to the Registration Statement on
Form S-1)
99.3 AvantGo, Inc. 1997 Stock Option Plan (incorporated by reference
to Exhibit 10.3 to the Registration Statement on Form S-1)
99.4 Globalware Computing, Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.56 to the Registration Statement on Form
S-1, as amended)
