S-8 1 s-8.txt REGISTRATION STATEMENT FOR FORM S-8 1 As filed with the Securities and Exchange Commission on July 20, 2000 Registration No. _____ -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SYBASE, INC. (Exact name of issuer as specified in its charter) DELAWARE 94-2951005 (State of incorporation) (IRS Employer Identification No.) 6475 Christie Avenue Emeryville, California 94608 (Address of Principal Executive Offices) 1996 STOCK PLAN AMENDED AND RESTATED 1991 EMPLOYEE STOCK PURCHASE PLAN AMENDED AND RESTATED 1991 FOREIGN SUBSIDIARY EMPLOYEE STOCK PURCHASE PLAN (Full title of the plans) Daniel R. Carl Vice President, General Counsel and Secretary SYBASE, INC. 6475 Christie Avenue Emeryville, California 94608 (Name and address of agent for service) (510) 922-3500 (Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE ---------------------------------------------------------------------------------------------------------------------------------- Title of Amount Proposed Maximum Proposed Maximum Amount of Securities to to be Offering Price Per Aggregate Offering Registration be Registered Registered(1) Share (2) Price (2) Fee ---------------------------------------------------------------------------------------------------------------------------------- Common Stock, $.001 par value - To be issued under 1996 Stock Plan 3,000,000 $21.1875 $ 63,562,500 $16,780.50 - To be issued under the Amended and Restated 1991 2,000,000 $21.1875 $ 42,375,000 $11,187.00 Employee Stock Purchase Plan and Amended and Restated 1991 Foreign Subsidiary Employee Stock Purchase Plan TOTAL 5,000,000 $21.1875 $105,937,500 $27,967.50 ----------------------------------------------------------------------------------------------------------------------------------
(1) No plan interests are being registered pursuant to Rule 416(c) under the Securities Act of 1933. (2) Estimated solely for the purpose of calculating the registration fee, pursuant to Rule 457(c), on the basis of the average of the high and low sale prices of the Common Stock as reported on the NASDAQ National Market System on July 13, 2000. 2 SYBASE, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission: 1. The Company's Annual Report on Form 10-K for fiscal year ended December 31, 1999, as amended by the Form 10-K/A filed May 10, 2000, and the Form 10-K/A filed June 19, 2000, all of which were filed pursuant to Section 13 of the Exchange Act of 1934, as amended (the "Exchange Act"). 2. The Company's definitive proxy statement dated April 14, 2000, in connection with the Company's Annual Meeting of Stockholders held May 25, 2000, filed pursuant to Section 14 of the Exchange Act. 3. The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000, filed pursuant to Section 13 of the Exchange Act. 4. The description of the Company's Common Stock contained in the Company's Form 8-A (File No. 0-19395), as amended, as declared effective by the Commission on August 13, 1991. 5. The description of the Company's Preferred Share Purchase Plan and Series A Participating Preferred Stock filed as Exhibits 1, 2 and 3 to the Company's Form 8-A/A filed with the Commission on November 14, 1996. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and 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 Counsel for the Company, Teresa D. Chuh has rendered an opinion to the effect that the Common Stock offered hereby: (i) will, when issued in accordance with the Registrant's 1996 Stock Plan, be legally and validly issued, fully paid and non-assessable with respect to those shares subject to issuance under such plan; (ii) will, when issued in accordance with the Registrant's Amended and Restated 1991 Employee Stock Purchase Plan, as amended, be legally and validly issued, fully paid and non-assessable with respect to those shares subject to issuance under such plan; and (iii) will, when issued in accordance with the Registrant's Amended and Restated 1991 Foreign Subsidiary Employee Stock Purchase Plan, as amended, be legally and validly issued, fully paid and non-assessable with respect to those shares subject to issuance under such plan. Ms. Chuh, who participated in the preparation of this Registration Statement, is an employee of the Registrant, and beneficially owns shares of the Registrant's Common Stock through participation in the Company's employee stock option plans including Registrant's 1996 Stock Plan. II-1 3 Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation law authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933 (the "Securities Act"). Article TENTH of the Company's Certificate of Incorporation and Article VI of the Bylaws of the Company provide for the indemnification of certain agents to the maximum extent permitted by the Delaware General Corporation Law. Persons covered by these indemnification provisions include current and former directors, officers, employees and other agents of the Company, as well as persons who serve at the request of the Company as directors, officers, employees or agents of another enterprise. In addition, the Company has entered into agreements with its officers and directors which require the Company to indemnify its officers and directors to the maximum extent allowed under Delaware law. Item 7. Exemption from Registration Claimed Not applicable. Item 8. Exhibits
Exhibit Number Description ------- ----------- 4.1 1996 Stock Plan, as amended February 2, 2000. 4.2 Amended and Restated 1991 Employee Stock Purchase Plan, as amended February 2, 2000. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of Ernst & Young LLP, independent auditors. 23.2 Consent of counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page II-4).
Item 9. Undertakings. A. 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 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. (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. 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 II-2 4 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 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. II-3 5 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 July 17, 2000. SYBASE, INC. By: /S/ JOHN S. CHEN ---------------------------------------------- John S. Chen, Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John S. Chen, Pieter Van der Vorst and Teresa D. Chuh, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendment 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 dates indicated.
Signature Title Date --------- ----- ---- /S/ JOHN S. CHEN Chairman of the Board (Principal Executive July 17, 2000 ------------------------ Officer), President, Chief Executive Officer (John S. Chen) and Director /S/ PIETER VAN DER VORST Vice President and Chief Financial Officer July 17, 2000 ------------------------ (Principal Financial Officer) (Pieter Van der Vorst) /S/MARTIN J. HEALY Vice President and Corporate Controller July 17, 2000 ------------------------ (Principal Accounting Officer) (Martin J. Healy) /S/ RICHARD C. ALBERDING Director July 17, 2000 ------------------------ (Richard C. Alberding) /S/ CECILIA CLAUDIO Director July 17, 2000 ------------------------ (Cecilia Claudio) /S/ L. WILLIAM KRAUSE Director July 17, 2000 ------------------------ (L. William Krause) /S/ ALAN B. SALISBURY Director July 17, 2000 ------------------------ (Alan B. Salisbury) /S/ ROBERT P. WAYMAN Director July 17, 2000 ------------------------ (Robert P. Wayman) /S/ LINDA K. YATES Director July 17, 2000 ------------------------ (Linda K. Yates)
II-4 6 EXHIBIT INDEX
Exhibit Number Description ------- ----------- 4.1 1996 Stock Plan, as amended February 2, 2000. 4.2 Amended and Restated 1991 Employee Stock Purchase Plan, as amended February 2, 2000. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of Ernst & Young LLP, independent auditors. 23.2(1) Consent of counsel 24.1(2) Power of Attorney
-------------------------------------------------------------------------------- (1) See Exhibit 5.1 (2) See page II-4 of Registration Statement on Form S-8. II-5