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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
- --------------------------------- ------------------------------------
(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.
1997 STOCK OPTION PLAN
2001 NONSTATUTORY STOCK OPTION 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 (the
"Securities Act").
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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
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1997 Stock Option Plan
Common Stock 1,070,533 $ 2.20 $2,355,172.60
Par Value $0.001
2001 Nonstatutory
Stock Option Plan
Common Stock 900,000 $ 2.20 $1,980,000.00
Par Value $0.001
TOTALS 1,970,533 $4,335,172.60 $ 1,083.80
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(1) The securities to be registered include options 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 the shares under the 1997 Stock Option Plan and the 2001
Nonstatutory Stock Option Plan, the $2.20 price is based upon the average of the
high and low prices of the Common Stock on June 19, 2001, 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 annual report on Form 10-K pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), containing audited financial statements for the Company's fiscal year
ended March 31, 2001 as filed with the Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of 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
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 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 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
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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;
(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)
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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 June 22,
2001.
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.
Signature Title Date
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/s/ PAUL G. LEGO President and Chief Executive Officer June 22, 2001
- --------------------------------- and Chairman of the Board of Directors
Paul G. Lego (Principal Executive Officer)
/s/ ALFRED J. CASTINO Chief Financial Officer June 22, 2001
- --------------------------------- (Principal Financial & Accounting Officer)
Alfred J. Castino
/s/ RONALD E.F. CODD
- --------------------------------- Director June 22, 2001
Ronald E.F. Codd
/s/ PHILIP W. HALPERIN Director June 22, 2001
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Philip W. Halperin
- --------------------------------- Director
Randall S. Livingston
/s/ STANDISH H. O'GRADY Director June 22, 2001
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Standish H. O'Grady
/s/ LAWRENCE K. ORR Director June 22, 2001
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Lawrence K. Orr
- --------------------------------- Director
Don Vassel
/s/ WILLIAM H. YOUNGER, JR. Director June 22, 2001
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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)
4.3 Rights Agreement dated November 8, 2000 is incorporated by reference to
Exhibit 4.4 to the Company's current report on Form 8-K 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
December 5, 2000
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)