Filed with the Securities and Exchange Commission on June 14, 2001
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
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0397905
- --------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
One Almaden Boulevard
San Jose, California 95113
---------------------------------------------------
(Address of principal executive offices) (Zip code)
Agile Software Corporation
1995 Stock Option Plan
1999 Employee Stock Purchase Plan
2000 Nonstatutory Stock Option Plan
-----------------------------------
Bryan D. Stolle
President, Chief Executive Officer
and Chairman of the Board
Agile Software Corporation
One Almaden Boulevard
San Jose, CA 95113
---------------------------------------
(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.
- ----------------------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
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
- ----------------------------------------------------------------------------------------------------------------------
1995 Stock Option Plan
----------------------
Common Stock 1,000,000 $15.70 $15,700,000 $3,925.00
Par Value $0.001
1999 Employee Stock Purchase Plan
---------------------------------
Common Stock 950,162 $13.35 $12,684,662 $3,171.17
Par Value $0.001
2000 Nonstatutory Stock Option Plan
-----------------------------------
Common Stock 5,000,000 $15.70 $78,500,000 $19,625.00
Par Value $0.001
TOTALS 6,950,162 $26,721.17
_____________________________________________
/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. The 1999 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 June 12, 2001, as reported on
the Nasdaq National Market. For the 1995 Stock Option Plan and the 2000
Nonstatutory Stock Option Plan, the price is based upon the average of the high
and low prices of the Common Stock on June 12, 2001.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
---------------------------------------
Agile Software Corporation (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 April 30, 2000 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-A12G 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
-------------------------
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 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
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
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 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) 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.
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 Jose, State of California, on June 13, 2000.
AGILE SOFTWARE CORPORATION
By: /s/ Thomas P. Shanahan
--------------------------------
Thomas P. Shanahan
Executive Vice President,
Chief Financial Officer and
Secretary
SIGNATURES AND POWER OF ATTORNEY
--------------------------------
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 indicated on June 13, 2001.
Signature Title
- ---------------------------------------- ---------------------------------------
/s/ Bryan D. Stolle Chief Executive Officer, President and Chairman of the Board
- ----------------------------------------
Bryan D. Stolle (Principal Executive Officer)
/s/ Thomas P. Shanahan Executive Vice President, Chief Financial Officer,
- ----------------------------------------
Thomas P. Shanahan Secretary and Director (Principal Financial and Accounting Officer)
/s/ Klaus-Dieter Laidig Director
- ----------------------------------------
Klaus-Dieter Laidig
________________________________________ Director
James L. Patterson
/s/ Nancy J. Schoendorf Director
- ----------------------------------------
Nancy J. Schoendorf
EXHIBIT INDEX
-------------
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/A 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 3.3 to
the Company's Registration Statement on Form S-1/A 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
24 Power of Attorney (included in signature pages to this registration
statement)