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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 22, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ARBOR SOFTWARE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 7372 77-0277772
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
ORGANIZATION)
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1344 CROSSMAN AVENUE
SUNNYVALE, CALIFORNIA 94809
(408) 744-9500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
JOHN M. DILLON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ARBOR SOFTWARE CORPORATION
1344 CROSSMAN AVENUE
SUNNYVALE, CALIFORNIA 94809
(408) 744-9500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
WITH COPIES TO:
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ROBERT V. GUNDERSON, JR., ESQ. JOHN A. BURGESS, ESQ.
STEVEN M. SPURLOCK, ESQ. HAL J. LEIBOWITZ, ESQ.
GUNDERSON DETTMER STOUGH HALE AND DORR LLP
VILLENEUVE FRANKLIN & HACHIGIAN, LLP 60 STATE STREET
155 CONSTITUTION DRIVE BOSTON, MASSACHUSETTS 02109
MENLO PARK, CALIFORNIA 94025 (617) 526-6000
(650) 321-2400
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
As promptly as practicable after this Registration Statement becomes
effective and the effective time of the merger (the "Merger") of a wholly owned
subsidiary of Arbor Software Corporation with and into Hyperion Software
Corporation, as described in the Agreement and Plan of Merger, dated as of May
25, 1998, attached as Appendix A to the Joint Proxy Statement/Prospectus forming
a part of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the DGCL empowers a Delaware corporation to indemnify any
persons who are, or are threatened to be made, parties to any threatened,
pending or completed legal action, suit or proceedings, whether civil, criminal,
administrative or investigative (other than action by or in the right of such
corporation), by reason of the fact that such person was an officer or director
of such corporation, or is or was serving at the request of such corporation as
a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith and in a manner he reasonably believed to be in or
not opposed to the corporation's best interests, and, for criminal proceedings,
had no reasonable cause to believe his conduct was illegal. A Delaware
corporation may indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the officer or director is adjudged to be
liable to the corporation in the performance of his duty. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director actually and reasonably incurred.
In accordance with the DGCL, the Registrant's Restated Certificate of
Incorporation contains a provision to limit the personal liability of the
directors of the Registrant for violations of their fiduciary duty. This
provision eliminates each director's liability to the Registrant or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions, or (iv) for any transaction from which a director derived an
improper personal benefit. The effect of this provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any such actions involving
gross negligence.
Article IX of the Registrant's Restated Certificate of Incorporation and
Article VII, Section 6 of Registrant's Amended and Restated Bylaws provide for
indemnification of the officers and directors of the Registrant to the fullest
extent permitted by applicable law.
The Registrant has entered into indemnification agreements with each
director and executive officer which provide indemnification to such directors
and executive officers under certain circumstances for acts or omissions which
may not be covered by directors' and officers' liability insurance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
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<CAPTION>
EXHIBIT
NO. DESCRIPTION
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2.1++ -- Agreement and Plan of Merger dated as of May 25, 1998 among
Hyperion Software Corporation, the Registrant and HSC Merger
Corp. (included as Appendix A to the Joint Proxy
Statement/Prospectus included in Part I of this Registration
Statement).
3.1* -- Restated Certificate of Incorporation of the Registrant as
currently in effect.
3.2+ -- Restated Certificate of Incorporation of the Registrant to
be filed upon approval by the stockholders of Registrant
pursuant to the Arbor Merger Proposal contained in Part I of
this Registration Statement.
3.3* -- Amended and Restated Bylaws of the Registrant as currently
in effect.
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<CAPTION>
EXHIBIT
NO. DESCRIPTION
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<S> <C> <C>
3.4+ -- Amended and Restated Bylaws of the Registrant to be
effective upon approval by the stockholders of Registrant
pursuant to the Arbor Merger Proposal contained in Part I of
this Registration Statement.
4.1* -- Specimen certificate of the Registrant's Common Stock.
5.1+ -- Opinion of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP.
8.1++ -- Tax Opinion of Gunderson Dettmer Stough Villeneuve Franklin
& Hachigian, LLP.
8.2++ -- Tax Opinion of Hale and Dorr LLP.
23.1++ -- Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP (Reference is made to Exhibits 5.1 and 8.1).
23.2++ -- Consent of Hale and Dorr LLP (Reference is made to Exhibit
8.2).
23.3++ -- Consent of Price Waterhouse LLP.
23.4+++ -- Consent of Ernst & Young LLP.
23.5++ -- Consent of Morgan Stanley & Co. Incorporated (Reference is
made to Exhibit 99.3).
23.6++ -- Consent of Goldman, Sachs & Co.
24.1++ -- Power of Attorney.
99.1+ -- Form of Registrant's Proxy Card.
99.2+ -- Form of Hyperion's Proxy Card.
99.3++ -- Opinion of Morgan Stanley & Co. Incorporated dated as of May
25, 1998 (included as Appendix B to the Joint Proxy
Statement/Prospectus included in Part I of this Registration
Statement).
99.4++ -- Opinion of Goldman, Sachs & Co. dated as May 25, 1998
(included as Appendix C to the Joint Proxy
Statement/Prospectus included in Part I of this Registration
Statement).
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* Incorporated by reference to such exhibit as filed in the Registrant's
Registration Statement on Form S-1, filed on November 6, 1995 (File No.
33-97098), as amended.
+ To be filed by Amendment.
++ Previously filed.
+++ Filed herewith.
(b) Financial Statement Schedules
Not Applicable
ITEM 22. UNDERTAKINGS
Registrant hereby undertakes as follows: that prior to any public
reoffering of the securities registered hereunder through use of a prospectus
which is a part of this Registration Statement, by any person or party who is
deemed to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the information called
for by the applicable registration form with respect to reofferings by persons
who may be deemed underwriters, in addition to the information called for by the
other items of the applicable form.
Registrant undertakes that every prospectus (i) that is filed pursuant to
the immediately preceding paragraph, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Act and is used in connection with an
offering of securities subject to Rule 415, will be filed as a part of an
amendment to the Registration Statement and will not be used until such
amendment is effective, and that, for purposes 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.
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Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Registrant
pursuant to the foregoing provisions, or otherwise, 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 Registrant of expenses
incurred or paid by a director, officer or controlling person of 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, 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.
The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
Registrant hereby undertakes to supply by means of a post-effective
amendment all information concerning a transaction, and the company being
acquired involved therein, that was not the subject of and included in the
Registration Statement when it became effective.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Amendment No. 1 to Registration Statement on
Form S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Sunnyvale, State of California, on June 19, 1998.
ARBOR SOFTWARE CORPORATION
By: /s/ JOHN M. DILLON
------------------------------------
John M. Dillon
President, Chief Executive Officer
and Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to Registration Statement has been signed by the following
persons in the capacities and on the dates indicated:
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NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ JOHN M. DILLON President, Chief Executive June 19, 1998
- -------------------------------------------------------- Officer and Chairman of the
John M. Dillon Board (Principal Executive
Officer)
/s/ STEPHEN V. IMBLER Senior Vice President and June 19, 1998
- -------------------------------------------------------- Chief Financial Officer
Stephen V. Imbler (Principal Financial and
Accounting Officer)
/s/ MARK W. PERRY* Director June 19, 1998
- --------------------------------------------------------
Mark W. Perry
/s/ JEFFREY R. RODEK* Director June 19, 1998
- --------------------------------------------------------
Jeffrey R. Rodek
/s/ ANN L. WINBLAD* Director June 19, 1998
- --------------------------------------------------------
Ann L. Winblad
*By: /s/ JOHN M. DILLON
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John M. Dillon
(Attorney-in-Fact)
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
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2.1++ --Agreement and Plan of Merger dated as of May 25, 1998
among Hyperion Software Corporation, the Registrant and HSC
Merger Corp. (included as Appendix A to the Joint Proxy
Statement/Prospectus included in Part I of this Registration
Statement).
3.1* --Restated Certificate of Incorporation of the Registrant as
currently in effect.
3.2+ --Restated Certificate of Incorporation of the Registrant to
be filed upon approval by the stockholders of Registrant
pursuant to the Arbor Merger Proposal contained in Part I of
this Registration Statement.
3.3* --Amended and Restated Bylaws of the Registrant as currently
in effect.
3.4+ --Amended and Restated Bylaws of the Registrant to be
effective upon approval by the stockholders of Registrant
pursuant to the Arbor Merger Proposal contained in Part I of
this Registration Statement.
4.1* --Specimen certificate of the Registrant's Common Stock.
5.1+ --Opinion of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP.
8.1++ --Tax Opinion of Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP.
8.2++ --Tax Opinion of Hale and Dorr LLP.
23.1++ --Consent of Gunderson Dettmer Stough Villeneuve Franklin &
Hachigian, LLP (Reference is made to Exhibits 5.1 and 8.1).
23.2++ --Consent of Hale and Dorr LLP (Reference is made to Exhibit
8.2).
23.3++ --Consent of Price Waterhouse LLP.
23.4+++ --Consent of Ernst & Young LLP.
23.5++ --Consent of Morgan Stanley & Co. Incorporated (Reference is
made to Exhibit 99.3).
23.6++ --Consent of Goldman, Sachs & Co.
24.1++ --Power of Attorney.
99.1+ --Form of Registrant's Proxy Card.
99.2+ --Form of Hyperion's Proxy Card.
99.3++ --Opinion of Morgan Stanley & Co. Incorporated dated as of
May 25, 1998 (included as Appendix B to the Joint
Proxy/Prospectus included in Part I of this Registration
Statement).
99.4++ --Opinion of Goldman, Sachs & Co. dated as of May 25, 1998
(included as Appendix C to the Joint Proxy/Prospectus
included in Part I of this Registration Statement).
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* Incorporated by reference to such exhibit as filed in the Registrant's
Registration Statement on Form S-1, filed on November 6, 1995 (File No.
33-97098), as amended.
+ To be filed by Amendment.
++ Previously filed.
+++ Filed herewith.
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-4 (Registration No.333-57197) of Arbor Software
Corporation and related Joint Proxy Statement/Prospectus of Arbor Software
Corporation and Hyperion Software Corporation for the registration of 18,172,966
shares of the common stock of Arbor Software Corporation and to the
incorporation by reference therein of our report dated July 17, 1997, with
respect to the consolidated financial statements and schedules of Hyperion
Software Corporation included in its Annual Report (Form 10-K) for the year
ended June 30, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Stamford, Connecticut
June 12, 1998
