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As filed with the Securities and Exchange Commission on October 28, 1997
Registration No. 333- ________
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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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ARBOR SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0277772
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1344 CROSSMAN AVENUE
SUNNYVALE, CALIFORNIA 94089
(Address of principal executive offices) (Zip Code)
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ARBOR SOFTWARE CORPORATION
1995 STOCK OPTION/STOCK ISSUANCE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
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STEPHEN V. IMBLER
SENIOR VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
ARBOR SOFTWARE CORPORATION
1344 CROSSMAN AVENUE, SUNNYVALE, CALIFORNIA 94089
(Name and address of agent for service)
(408) 744-9500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Options to purchase Common Stock 750,000 N/A N/A N/A
under the 1995 Stock Option/Stock
Issuance Plan
Common Stock, $0.001 par value:
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1995 Stock Option/Stock Issuance Plan 750,000 $42.375 $31,781,250 $9,630.67
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Employee Stock Purchase Plan 150,000 $42.375 $ 6,356,250 $1,926.14
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1995 Stock Option/Stock
Issuance Plan and Employee Stock Purchase Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of the outstanding shares of Common Stock of
Arbor Software Corporation.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the per share
of Common Stock of Arbor Software Corporation on the Nasdaq National
Market on October 23, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Arbor Software Corporation (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) (1) The Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1997;
(2) Amendment No. 1 on Form 10-K/A filed with the SEC on
June 30, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1997; and
(c) The Registrant's Registration Statement No. 0-97098 on Form 8-A
filed with the SEC on September 19, 1995 pursuant to Section 12
of the Securities Exchange Act of 1934, as amended (the "1934
Act"), in which there is described the terms, rights and
provisions applicable to the Registrant's outstanding Common
Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a 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
Section 145 of the Delaware General Corporation Law authorizes a court
to award or a corporation's Board of Directors to grant indemnification 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 as
amended (the "1933 Act.") The Registrant's Bylaws provide for mandatory
indemnification of its directors and officers and permissible indemnification of
employees and other agents to the maximum extent permitted by the Delaware
General Corporation Law. The Registrant's Certificate of Incorporation provides
that, pursuant to Delaware law, its directors shall not be liable for monetary
damages for breach of their fiduciary duty as directors to the Registrant and
its stockholders. This provision in the Certificate of Incorporation does not
eliminate the fiduciary duty of the directors, and, in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws. The Registrant has entered into
Indemnification Agreements with its officers and directors. The Indemnification
Agreements provide the Registrant's officers and directors with further
indemnification to the maximum extent permitted by the Delaware General
Corporation Law.
<PAGE> 3
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-97098 on Form 8-A
which is incorporated herein by reference pursuant to Item
3(c) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
</TABLE>
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 (i) to include any prospectus required
by Section 10(a)(3) of the 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
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 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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 and (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 Registrant's 1995
Stock Option/Stock Issuance Plan and Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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 1933 Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
or otherwise, the Registrant has been advised that, in the opinion of the SEC,
such indemnification is against public policy as expressed in the 1933 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 1933 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, 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 Sunnyvale, State of California on this
23rd day of October, 1997.
ARBOR SOFTWARE CORPORATION
By: /s/ James A. Dorrian
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James A. Dorrian
Chief Executive Officer and
Chairman of the
Board of Directors
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Arbor Software
Corporation, a Delaware corporation, do hereby constitute and appoint James A.
Dorrian and Stephen V. Imbler, and either of them, the lawful attorneys-in-fact
and agents with full power and authority to do any and all acts and things and
to execute any and all instruments which said attorneys and agents, and either
one of them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and either of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or either one of them, shall do or cause to
be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ James A. Dorrian Chief Executive Officer October 23, 1997
- ------------------------------------- and Chairman of the Board of Directors
James A. Dorrian (Principal Executive Officer)
/s/ Stephen V. Imbler Senior Vice President and October 23, 1997
- ------------------------------------- Chief Financial Officer
Stephen V. Imbler (Principal Financial and
Accounting Officer)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ John M. Dillon President, Chief Operating Officer October 23, 1997
- ------------------------------------ and Director
John M. Dillon
Director , 1997
- ------------------------------------ -----------
Mark W. Perry
/s/ Ann L. Winblad Director October 23, 1997
- ------------------------------------
Ann L. Winblad
</TABLE>
II-4
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ARBOR SOFTWARE CORPORATION
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EXHIBIT INDEX
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<CAPTION>
Exhibit Number Exhibit
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<S> <C>
4 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-97098 on Form
8-A, which is incorporated herein by reference pursuant to
Item 3(c) of this Registration Statement.
5 Opinion and consent of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
23.1 Consent of Price Waterhouse LLP, Independent Accountants
23.2 Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-3 of this
Registration Statement.
</TABLE>
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EXHIBIT 5
October 27, 1997
Arbor Software, Inc.
1344 Crossman Avenue
Sunnyvale, California 94089
Re: Arbor Software, Inc. Registration Statement
for Offering of 900,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of (i) 750,000 shares of Common
Stock under the Company's 1995 Stock Option/Stock Issuance Plan and (ii) 150,000
shares of Common Stock under the Company's Employee Stock Purchase Plan. We
advise you that, in our opinion, when such shares have been issued and sold
pursuant to the applicable provisions of the 1995 Stock Option/Stock Issuance
Plan and Employee Stock Purchase Plan and in accordance with the Registration
Statement, such shares will be validly issued, fully paid and nonassessable
shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
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EXHIBIT 23.1
ARBOR SOFTWARE CORPORATION
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 18, 1997, which appears on page
23 of the Arbor Software Corporation Annual report on Form 10-K/A for the year
ended March 31, 1997.
/s/ Price Waterhouse LLP
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Price Waterhouse LLP
San Jose, California
October 24, 1997
