As filed with the Securities and Exchange Commission on October 10, 2002
Registration No. 333-__________
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UNITED STATES 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 94-3219745
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1400 65TH STREET, SUITE 100
EMERYVILLE, CA 94608
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
AMENDED AND RESTATED 2000 STOCK PLAN
AMENDED AND RESTATED 2002 NONSTATUTORY STOCK OPTION PLAN
AMENDED AND RESTATED 2000 EMPLOYEE STOCK PURCHASE PLAN
STAND ALONE STOCK OPTION AGREEMENT
(FULL TITLE OF THE PLANS)
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LINDA ZECHER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EVOLVE SOFTWARE, INC.
1400 65TH STREET, SUITE 100
EMERYVILLE, CA 94608
(510) 428-6000
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
KATHARINE A. MARTIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
------------------------------------------- ---------- ---------------- ------------------- -----------------
Common Stock, $0.001 par value per share,
issuable under the Amended and Restated
2000 Stock Plan 11,461,871 $ 0.44 (2) $ 5,043,223 (2) $ 464
------------------------------------------- ---------- ---------------- ------------------- -----------------
Common Stock, $0.001 par value per share,
issuable under the Amended and Restated
2000 Stock Plan 9,538,129 $ 0.115 (3) $ 1,096,885(3) $ 101
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Common Stock, $0.001 par value per share,
issuable under the Amended and Restated
2002 Nonstatutory Stock Option Plan 3,500,000 $ 0.24 (2) $ 840,000 (2) $ 77
------------------------------------------- ---------- ---------------- ------------------- -----------------
Common Stock, $0.001 par value per share,
issuable under the Amended and Restated
2000 Employee Stock Purchase Plan 429,089 $ 0.115 (3) $ 49,345 (3) $ 5
------------------------------------------- ---------- ---------------- ------------------- -----------------
Common Stock, $0.001 par value per share,
issuable under a Stand Alone Stock Option
Agreement 4,000,000 $ 0.25 (2) $ 1,000,000 (2) $ 92
------------------------------------------- ---------- ---------------- ------------------- -----------------
Total 28,929,089 --- $ 8,029,453 $ 739
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(1) Computed in accordance with Rules 457(h) and (c) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee.
(2) Based on the weighted average exercise price per share of options issued
under such plan or agreement.
(3) Based on the average of the high and low sales prices for the common stock
of Evolve Software, Inc. (the "Registrant") on October 9, 2002, as reported
on the Nasdaq SmallCap Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
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The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 2002 filed with the Commission on September 30, 2002.
(b) The description of the Common Stock of the Registrant contained in the
Registration Statement on Form 8-A filed with the Commission on July
26, 2000 and any amendment or report filed thereafter for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or deregisters all
securities then 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.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 145(a) of the Delaware General Corporation Law provides, in
general, that a corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation),
because the person is or was a director or officer of the corporation. Such
indemnity may be against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding, if the person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation and if, with respect to any criminal
action or proceeding, the person did not have reasonable cause to believe the
person's conduct was unlawful.
Section 145(b) of the Delaware General Corporation Law provides, in
general, that a corporation shall have the power to indemnify any person who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor because the person is or was a director or officer of the
corporation, against any expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation.
Section 145(g) of the Delaware General Corporation Law provides, in
general, that a corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation against any liability asserted against the person in any such
capacity, or arising out of the person's status as such, whether or not the
corporation would have the power to indemnify the person against such liability
under the provisions of the law.
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Article 9 of the Registrant's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors to the fullest
extent permissible under the Delaware General Corporation Law. Article 6 of the
Registrant'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 Registrant 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.
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Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT NUMBER EXHIBIT DOCUMENT
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10.1 (1) Amended and Restated 2000 Stock Plan
10.2 (2) Amended and Restated 2002 Nonstatutory Stock Option Plan
10.3 (3) Amended and Restated 2000 Employee Stock Purchase Plan
10.4 Stand Alone Stock Option Agreement for Linda Zecher
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included on the signature page)
(1) Incorporated by reference to Exhibit 10.5 to the Registrant's Annual Report
on Form 10-K filed with the Commission on September 30, 2002.
(2) Incorporated by reference to Exhibit 10.28 to the Registrant's Annual
Report on Form 10-K filed with the Commission on September 30, 2002.
(3) Incorporated by reference to Exhibit 10.6 to the Registrant's Annual Report
on Form 10-K filed with the Commission on September 30, 2002.
ITEM 9. UNDERTAKINGS.
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(a) The undersigned Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(1) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(2) 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;
(3) 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 (a)(i)(1) and (a)(i)(2) 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 this registration statement.
(ii) 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.
(iii) 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 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 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.
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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 October 9, 2002.
EVOLVE SOFTWARE, INC.
By: /s/ Linda Zecher
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Linda Zecher
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Linda Zecher and Arthur T. Taylor,
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.
SIGNATURE TITLE DATE
--------------------- ---------------------------------------- ---------------
/s/ Linda Zecher President and Chief Executive Officer, October 9, 2002
--------------------- Director (principal executive officer)
Linda Zecher
/s/ Arthur T. Taylor Chief Financial Officer and Vice
--------------------- President, Finance (principal financial October 9, 2002
Arthur T. Taylor and accounting officer)
/s/ Gayle Crowell Chair of the Board of Directors October 9, 2002
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Gayle Crowell
/s/ Cary Davis Director October 9, 2002
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Cary Davis
/s/ Jeffrey M. Drazan Director October 9, 2002
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Jeffrey M. Drazan
/s/ Nancy Martin Director October 3, 2002
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Nancy Martin
/s/ John R. Oltman Director October 9, 2002
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John R. Oltman
/s/ Paul Rochester Director October 4, 2002
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Paul Rochester
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INDEX TO EXHIBITS
EXHIBIT NUMBER EXHIBIT DOCUMENT
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10.1 (1) Amended and Restated 2000 Stock Plan
10.2 (2) Amended and Restated 2002 Nonstatutory Stock Option Plan
10.3 (3) Amended and Restated 2000 Employee Stock Purchase Plan
10.4 Stand Alone Stock Option Agreement for Linda Zecher
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1 hereto)
24.1 Power of Attorney (included on the signature page)
(1) Incorporated by reference to Exhibit 10.5 to the Registrant's Annual Report
on Form 10-K filed with the Commission on September 30, 2002.
(2) Incorporated by reference to Exhibit 10.28 to the Registrant's Annual
Report on Form 10-K filed with the Commission on September 30, 2002.
(3) Incorporated by reference to Exhibit 10.6 to the Registrant's Annual Report
on Form 10-K filed with the Commission on September 30, 2002.