-----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, NhHeFhrQHUrGRny4VfDmO7vX5B+qF98HL36HuXN5TiTIlfWH70Ao0YU2x+1mJPZN Je6eqhlvNGxNeiuiJr2oOg== 0001012870-00-000501.txt : 20000211 0001012870-00-000501.hdr.sgml : 20000211 ACCESSION NUMBER: 0001012870-00-000501 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000210 EFFECTIVENESS DATE: 20000210 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TIBCO SOFTWARE INC CENTRAL INDEX KEY: 0001085280 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER INTEGRATED SYSTEMS DESIGN [7373] IRS NUMBER: 770449727 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-30088 FILM NUMBER: 532383 BUSINESS ADDRESS: STREET 1: 3165 PORTER DRIVE CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 6508465000 MAIL ADDRESS: STREET 1: 3165 PORTER DRIVE CITY: PALO ALTO STATE: CA ZIP: 94304 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on February 10, 2000 Registration No. 333-_________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________________ Form S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ____________________ TIBCO SOFTWARE INC. (Exact name of registrant as specified in its charter) DELAWARE 77-0449727 ----------------------- --------------------- (State of Incorporation) (I.R.S. Employer Identification No.) 3165 Porter Drive Palo Alto, CA 94304 (Address of Principal Executive Offices, including Zip Code) ________________________________________ 1996 Stock Option Plan (Full title of the plan) _________________________________________ Paul Hansen Chief Financial Officer 3165 Porter Drive Palo Alto, CA 94304 (650) 846-1000 (Name, address and telephone number of agent for service) ____________________ Copies to: Brian C. Erb, Esq. Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, California 94304-1050 CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------------- Proposed Proposed Amount Maximum Maximum Amount of Title of Securities to to be Offering Price Aggregate Registration be Registered Registered(1) Per Share Offering Price Fee - ---------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.001 par value, to be 2,569,749 $140.70 (2) $361,563,685 $95,453 issued upon exercise of options granted and outstanding under the 1996 Stock Option Plan Common Stock, $0.001 par value, to be 3,366,939 $173.75 (3) $585,005,652 $154,441 issued upon exercise of options available for grant under the 1996 Stock Option Plan - ---------------------------------------------------------------------------------------------------------------------------- TOTAL $946,569,337 $249,894 - ----------------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Plan being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Estimated in accordance with Rule 457(h) solely for the purpose calculating the registration fee of options granted and outstanding, based on the weighted average exercise price of the outstanding options as of February 10, 2000, which average is $140.70. (3) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee of options available for grant, based on the average price of the high and low price as reported by the Nasdaq Stock Market on February 4, 2000, which average price is $173.75. -2- TIBCO SOFTWARE INC. REGISTRATION STATEMENT ON FORM S-8 PART II Item 3. Incorporation of Documents by Reference. There are hereby incorporated by reference into this Registration Statement the following documents and information heretofore filed by TIBCO Software Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission"): 1. The Registrant's Current Report on Form 8-K filed on November 19, 1999. 2. The Registrant's Current Report on Form 8-K/A filed on December 29, 1999. 3. The Registrant's Quarterly Report on Form 10-Q for the quarter ending August 27, 1999 filed on October 12, 1999. 4. The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed on July 1, 1999. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a post- effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. The Registrant's Certificate of Incorporation limits the liability of directors to the maximum extent permitted by Delaware law. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duties as directors, except for liability (i) for any breach of their duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) for unlawful payments or dividends or unlawful stock repurchases or redemptions as provided Section 174 of Delaware General Corporation Law or (iv) for transactions from which the director derived an improper personal benefit. -3- The Registrant's Bylaws provide that the Registrant shall indemnify its officers and directors and may indemnify its employees and other agents to the fullest extent provided by Delaware law, including those circumstances where indemnification would otherwise be discretionary under Delaware law. The Registrant believes that indemnification under its Bylaws covers at least negligence on the part of indemnified parties. The Bylaws authorize the use of indemnification agreements and the Registrant has entered into such agreements with each of its directors and officers. The Registrant maintains directors and officers insurance providing indemnification for certain of the Registrant's directors, officers, affiliates, partners or employees for certain liabilities. Delaware Law does not permit a corporation to eliminate a director's duty of care, and the provisions of the Registrant's Certificate of Incorporation have no effect on the availability of equitable remedies such as injunction or rescission, based upon a director's breach of the duty of care. Insofar as indemnification for liabilities arising under the Exchange Act may be permitted to foregoing provisions and agreements, the Registrant has been informed that in the opinion of the staff of the Commission such indemnification is against public policy as expressed in the Exchange Act and is therefore unenforceable. Item 7. Exemption from Registration Not applicable. Item 8. Exhibits. Exhibit Number Description ------- ----------- 4.1* 1996 Stock Option Plan. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP, independent accountants. 23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). 24.1 Power of Attorney (contained on signature page). _____________ *Incorporated by reference to the Registrant's Registration Statement on Form S-1 (File No. 333-78195), declared effective by the Commission on July 13, 1999. Item 9. Undertakings. (a) The Registrant hereby undertakes: -4- (i) To file, during any period which offers or sales are being made, a post-effective amendment to this Registration Statement 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. (ii) That, for the purpose of determining any liability under the Securities Act, each 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 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. (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 law, the Registrant's Amended and Restated Certificate of Incorporation, Bylaws, indemnification agreements, or 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 a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, 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 of 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. -5- SIGNATURES Pursuant to the requirements of the Securities Act, 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 Palo Alto, State of California, on this 10th day of February, 2000. TIBCO SOFTWARE INC. By: /s/ Paul G. Hansen ------------------------------------------- Paul G. Hansen Executive Vice President, Finance and Chief Financial Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paul G. Hansen as his attorney-in-fact, with full power of substitution in each, for him 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 Commission, hereby ratifying and confirming all that said attorney-in-fact, or his substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ Vivek Ranadive President, Chief Executive Officer, February 10, 2000 ________________________________ Chairman of the Board and Director Vivek Ranadive (Principal Executive Officer) /s/ Paul G. Hansen Executive Vice President, Finance, February 10, 2000 _________________________________ and Chief Financial Officer Paul G. Hansen (Principal Financial Officer) /s/ Ginger M. Kelly Corporate Controller and Chief February 10, 2000 _________________________________ Accounting Officer (Principal Ginger M. Kelly Accounting Officer) /s/ Douglas M. Atkin Director February 10, 2000 _________________________________ Douglas M. Atkin Director _________________________________
Yogen K. Dalal /s/ Edward R. Kozel Director February 10, 2000 _________________________________ Edward R. Kozel /s/ Donald J. Listwin Director February 10, 2000 _________________________________ Donald J. Listwin /s/ Larry W. Sonsini Director February 10, 2000 _________________________________ Larry W. Sonsini /s/ John G. Taysom Director February 10, 2000 _________________________________ John G. Taysom /s/ Phillip E. White Director February 10, 2000 _________________________________ Phillip E. White /s/ Philip K. Wood Director February 10, 2000 _________________________________ Philip K. Wood
INDEX TO EXHIBITS Exhibit Description Number ------- 4.1* 1996 Stock Option Plan. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of PricewaterhouseCoopers LLP, independent accountants. 23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1). 24.1 Power of Attorney (contained on signature page). _______________ *Incorporated by reference to the Registrant's Registration Statement on Form S-1 (File No. 333-78195), declared effective by the Commission on July 13, 1999. EX-5.1 2 OPINION OF COUNSEL EXHIBIT 5.1 ----------- February 10, 2000 TIBCO Software Inc. 3165 Porter Drive Palo Alto, CA 94304 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about February 10, 2000 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 5,936,688 shares of Common Stock, par value $0.001 (the "Shares"), reserved for issuance pursuant to the 1996 Stock Option Plan (the "Plan"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of the Shares under the Plan. It is our opinion that the Shares will be, when issued and sold in the manner referred to in the Plan, legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement and any subsequent amendment thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati P.C. EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTS EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated April 23, 1999, except for the subsequent events as discussed in Note 10, which is as of July 13, 1999, relating to the financial statements, which appears in the Registration Statement of TIBCO Software Inc. Form S-1 (333-78195) dated July 13, 1999. /s/ PricewaterhouseCoopers LLP San Jose, California February 9, 2000 -----END PRIVACY-ENHANCED MESSAGE-----