-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FtxNE80G9lqPi570XAXAewH8tMcbVqWhPEAkcLPPJsyY/ze1NRjGuQKYYh0fummJ jd4HEetpewVC48tET1yDFA== 0001012870-96-000736.txt : 19961202 0001012870-96-000736.hdr.sgml : 19961202 ACCESSION NUMBER: 0001012870-96-000736 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19961127 EFFECTIVENESS DATE: 19961127 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: VISIGENIC SOFTWARE INC CENTRAL INDEX KEY: 0000917062 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 943173927 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-16977 FILM NUMBER: 96673706 BUSINESS ADDRESS: STREET 1: 951 MARINERS ISLAND BLVD STREET 2: SUITE 460 CITY: SAN MATEO STATE: CA ZIP: 94404 BUSINESS PHONE: 4152861900 MAIL ADDRESS: STREET 1: 951 MARINERS ISLAND BLVD STREET 2: SUITE 460 CITY: SAN MATEO STATE: CA ZIP: 94404 S-8 1 FORM S-8 Registration No.____________________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- VISIGENIC SOFTWARE, INC. --------------------------------------- (Exact name of registrant as specified in its charter) Delaware 94-3173927 --------------------------------- ------------------------------------ (State or other jurisdiction (I.R.S. employer identification no.) of incorporation or organization) 951 Mariner's Island Blvd., Suite 120 San Mateo, CA 94404 ------------------------------------------------------ (Address of principal executive offices) (Zip code) VISIGENIC SOFTWARE, INC. 1995 STOCK OPTION PLAN 1996 OUTSIDE DIRECTORS STOCK OPTION PLAN 1996 EMPLOYEE STOCK PURCHASE PLAN EXECUTIVE PERFORMANCE INCENTIVE PLAN --------------------------------------------------------- (Full title of the plan) Kevin C. Eichler Vice President, Finance Chief Financial Officer Treasurer and Secretary Visigenic Software, Inc. 951 Mariner's Island Blvd., Suite 120 San Mateo, CA 94404 --------------------------------------------------------- (Name and address of agent for service) Telephone number, including area code, of agent for service: 415/286-1900 This registration statement, including all exhibits and attachments, contains 10 pages. The exhibit index may be found on page 8 of the consecutively numbered pages of the registration statement. This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended. 1
- ---------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------- Proposed Proposed Title of maximum maximum securities Amount offering aggregate Amount of to be to be price per offering registration registered/1/ registered share/2/ price/2/ fee - ---------------------------------------------------------------------------------------------------------- 1995 Stock Option Plan - ---------------------- Common Stock 130,000 $ 1.23 $ 159,900.00 $ 48.45 Par Value $0.001 1,652,950 $ 6.41 $ 10,595,409.50 $3,210.73 467,617 $14.63 $ 6,841,236.71 $2,073.10 1996 Outside Directors Stock Option Plan - ---------------------------------------- Common Stock 200,000 $14.63 $ 2,926,000.00 $ 886.67 Par Value $0.001 Executive Performance Incentive Plan - ------------------------------------ Common Stock 100,000 $14.63 $ 1,463,000.00 $ 443.33 Par Value $0.001 1996 Employee Stock Purchase Plan - --------------------------------- Common Stock 450,000 $12.43 $ 5,593,500.00 $1,695.00 Par Value $0.001 TOTAL 3,000,567 $27,579,046.21 $8,357.28
- ------------------------------- /1/ The securities to be registered include options and rights to acquire such Common Stock. /2/ 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, the $1.23 and $6.41 prices are computed on the basis of the weighted average exercise prices. As to the remaining shares under the 1995 Stock Option Plan and as to the shares under the 1996 Outside Directors Stock Option Plan and the Executive Performance Incentive Plan, the $14.63 price is based upon the average of the high and low prices of the Common Stock on November 25, 1996 as reported on the National Association of Securities Dealers Automated Quotations System. The 1996 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 $12.43 price for purchase rights under this plan is based upon 85% of $14.63, the average of the high and low prices of the Common Stock on November 25, 1996 as reported on the National Association of Securities Dealers Automated Quotations System. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT -------------------------------------------------- Item 3. Incorporation of Documents by Reference - ------ --------------------------------------- Visigenic Software, 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. The prospectus is included in the Company's Registration Statement on Form S-1 (No. 333-06285). (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 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, A Professional Corporation. As of November 25, 1996 certain attorneys of Gray Cary Ware & Freidenrich, A Professional Corporation, owned 34,500 shares of the Common Stock of the Company. Item 6. Indemnification of Directors and Officers - ------ ----------------------------------------- Delaware law authorizes corporations to eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breach or alleged breach of the directors' "duty of care." While the relevant statute does not change directors' duty of care, it 3 enables corporations to limit available relief to equitable remedies such as injunction or rescission. The statute has no effect on directors' duty of loyalty, acts or omissions not in good faith or involving intentional misconduct or knowing violations of law, illegal payment of dividends and approval of any transaction from which a director derives an improper personal benefit. The Company has adopted provisions in its Certificate of Incorporation which eliminate 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. The Bylaws of the Company provide for indemnification of its directors, officers, employees and agents to the full extent permitted by the General Corporation Law of the State of Delaware, the Company's state of incorporation, including those circumstances in which indemnification would otherwise be discretionary under Delaware Law. 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 - ------ ------------ (a) Rule 415 Offering ----------------- 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 of 1933; (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; (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; 4 provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the - ----------------- registration statement is on Form S-3 or Form S-8, and 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 of 1933, 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) Filing incorporating subsequent Exchange Act documents by --------------------------------------------------------- reference --------- The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, 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. (h) Request for acceleration of effective date or filing of ------------------------------------------------------- registration statement on Form S-8 ---------------------------------- 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 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. 5 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 November 26, 1996. Visigenic Software, Inc. /s/ Kevin C. Eichler By:____________________________________ Kevin C. Eichler, Vice President, Finance, Chief Financial Officer, Treasurer and Secretary POWER OF ATTORNEY ----------------- The officers and directors of Visigenic Software, Inc. whose signatures appear below, hereby constitute and appoint Mark D. Hanson and Kevin C. Eichler, 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 November 26, 1996. Signature Title - ----------------------------------------------------------------------------- /s/ Roger J. Sippl - --------------------------------- Roger J. Sippl Chairman of the Board, Director and Chief Executive Officer (Principal Executive Officer) /s/ Mark D. Hanson - --------------------------------- Mark D. Hanson President and Chief Operating Officer /s/ Kevin C. Eichler - --------------------------------- Kevin C. Eichler Vice President, Finance, Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) 6 /s/ Jens Christensen - --------------------------------- Jens Christensen Vice President, Chief Technical Officer and Director /s/ Gill Cogan - --------------------------------- Gill Cogan Director /s/ Cristina M. Morgan - --------------------------------- Cristina M. Morgan Director /s/ Michael Moritz - --------------------------------- Michael Moritz Director - --------------------------------- E. E. van Bronkhorst Director /s/ J. Sidney Webb - --------------------------------- J. Sidney Webb Director /s/ Eric Young - --------------------------------- Eric Young Director 7 EXHIBIT INDEX ------------- Sequentially Numbered Page ------------- 4.1 Restated Certificate of Incorporation of the Company is incorporated by reference to Exhibit 3.1B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission (File No. 333-06285) -- 4.2 Bylaws of the Company is incorporated by reference to Exhibit 3.2B to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission (File No. 333-06285) -- 5 Opinion re legality 9 23.1 Consent of Counsel (included in Exhibit 5) -- 23.2 Consent of Independent Public Accountants 10 24 Power of Attorney (included in signature pages to this registration statement) -- 8 EX-5 2 OPINION RE LEGALITY EXHIBIT 5 [GRAY CARY WARE FREIDENRICH LETTERHEAD APPEARS HERE] ATTORNEYS AT LAW 400 HAMILTON AVENUE PALO ALTO, CA 94301-1825 OUR FILE NO. TEL (415) 328-6561 1220386-902700 FAX (415) 327-3699 1220386-901400 1220386-902500 1220386-902600 November 27, 1996 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: As legal counsel for Visigenic Software, Inc., a Delaware corporation (the "Company"), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 3,000,567 shares of the Common Stock, $0.001 par value, of the Company which may be issued pursuant to the exercise of options, awards and purchase rights granted under the Visigenic Software, Inc. 1995 Stock Option Plan, 1996 Outside Directors Stock Option Plan, Executive Performance Incentive Plan and 1996 Employee Stock Purchase Plan (the "Plans"). We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California, the corporation laws of the State of Delaware and the federal law of the United States. As to matters of Delaware corporation law, we have based our opinion solely upon our examination of such laws and the rules and regulations of the authorities administering such laws, all as reported in standard, unofficial compilations. We have not obtained opinions of counsel licensed to practice in jurisdictions other than the State of California. Based on such examination, we are of the opinion that the 3,000,567 shares of Common Stock which may be issued under the Plans are duly authorized shares of the Company's Common Stock, and, when issued against receipt of the consideration therefor in accordance with the provisions of the Plans, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement. Respectfully submitted, /s/ Gray Cary Ware & Freidenrich GRAY CARY WARE & FREIDENRICH A Professional Corporation 9 EX-23.2 3 CONSENT OF INDEPENDENT AUDITORS EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Form S-8 Registration Statement of our report dated June 17, 1996 included in Visigenic Software, Inc.'s filing on Form S-1 (Registration No. 333-06285) dated August 13, 1996. /s/ Arthur Andersen LLP ---------------------------------- ARTHUR ANDERSEN LLP San Jose, California November 26, 1996 10 -----END PRIVACY-ENHANCED MESSAGE-----