<PAGE> 1
As filed with the Securities and Exchange Commission on November 30, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HYPERION SOLUTIONS CORPORATION
(Exact Name of Registrant as
Specified in its Charter)
DELAWARE 77-0277772
(State or Other (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
1344 Crossman Avenue, Sunnyvale, CA 94089
(Address of Principal Executive Offices)
1995 STOCK OPTION/STOCK ISSUANCE PLAN
EMPLOYEE STOCK PURCHASE PLAN
RESTRICTED STOCK AWARD AGREEMENT
(Full Title of the Plan)
Stephen V. Imbler
President and Chief Operating Officer
Hyperion Solutions 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)
Copy to:
Sarah A. O'Dowd
Heller Ehrman White & McAuliffe LLP
525 University Avenue
Palo Alto, California 94301-1908
Telephone: (650) 324-7045
Facsimile: (650) 324-0638
CALCULATION OF REGISTRATION FEE
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Proposed
Amount Proposed Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered per Share(1) Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock $0.001 par value 2,400,000 $14.125 $33,900,000 $8,949.60
================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the registration
fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended, on the
basis of the average of the high and low prices per share of Common Stock of
Hyperion Solutions Corporation on the Nasdaq National Market on November 22,
2000.
<PAGE> 2
Reoffer Prospectus
HYPERION SOLUTIONS CORPORATION
100,000 SHARES OF COMMON STOCK
The selling stockholder identified in this prospectus is offering
100,000 shares of common stock, $0.001 par value of Hyperion Solutions
Corporation, with offices located at 1344 Crossman Avenue, Sunnyvale, California
94089, (408) 744-9500. Hyperion will not receive any of the proceeds from the
sale of the shares by the selling stockholder.
Hyperion's common stock is traded on the Nasdaq National Market under
the symbol "HYSL." On November 29, 2000, the closing sale price of Hyperion's
common stock on the Nasdaq National Market was $13.75 per share.
Investing in our common stock involves a high degree of risk. See "Risk
Factors" beginning on page 3.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is November 30, 2000
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TABLE OF CONTENTS
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PAGE NO.
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The Company................................................... 3
Risk Factors.................................................. 3
Special Note Regarding Forward-Looking Statements............. 6
Use of Proceeds............................................... 6
Selling Stockholder........................................... 6
Plan of Distribution.......................................... 7
Legal Matters................................................. 8
Incorporation of Certain Information by Reference............. 8
</TABLE>
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(C) Copyright 2000 Hyperion Solutions Corporation. All rights reserved.
Hyperion, Essbase, Hyperion Pillar and Hyperion Enterprise are registered
trademarks of Hyperion Solutions Corporation. Hyperion Solutions, the Hyperion
"H" logo, What's Going On, Essbase-Ready, Hyperion Essbase OLAP Server, Hyperion
Web Site Analysis Suite, Hyperion Customer Interaction Center, Hyperion
Planning, Hyperion Financial Management, Hyperion Application Link, Hyperion
Allocations Manager, Hyperion Performance Scorecard, Hyperion Activity Based
Management, Hyperion Enterprise Reporting, Hyperion Reports, Hyperion Analyzer,
Hyperion Integration Server, Hyperion Application Builder, Hyperion Essbase API,
Hyperion Essbase Application Manager, Hyperion Essbase Currency Conversion,
Hyperion Essbase Partitioning Option, Hyperion Objects, Hyperion Essbase SQL
Interface, Hyperion Field Services Analysis, Hyperion Product Quality Analysis,
Hyperion Essbase Spreadsheet Add-in, Hyperion Essbase Spreadsheet Toolkit,
Hyperion Web Gateway and HyperionReady are trademarks of Hyperion Solutions
Corporation. All other trademarks and company names mentioned are the property
of their respective owners.
For further information, refer to the Hyperion Solutions Corporation annual
report on Form 10-K for the year ended June 30, 2000.
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THE COMPANY
Founded in 1991, Hyperion develops, markets and supports business
analysis software, which helps turn raw data into business information.
Hyperion's products and services enables companies and their employees to plan,
manage, and execute business strategies to achieve faster revenue and profit
growth, and ultimately create value for their shareholders. Hyperion's products
analyze the raw data captured in operational systems, which improves the return
on investment that organizations have made in enterprise resource planning
("ERP"), supply chain management ("SCM"), customer relationship management
("CRM"), marketing automation, Web and e-commerce systems and data warehouses.
Hyperion provides a full suite of applications that cover analytical needs
across a wide variety of functional areas extending from "front office" to "back
office." Hyperion uses its best of breed technology - Hyperion Essbase OLAP
Server - as the foundation of its comprehensive enterprise analysis platform.
This on-line analytical processing ("OLAP") server technology, along with
packaged business analysis applications, and an extensive family of application
development tools and data and application integration technologies give
Hyperion one of the deepest and broadest product offerings in the market. In
addition, Hyperion offers highly rated support and services from offices in 26
countries, and works with over 400 partners to provide solutions to more than
6,000 customer organizations worldwide. Hyperion and its network of over 400
partners deliver Web and mobile-enabled solutions that address a broad range of
cross-industry and industry-specific business analysis requirements. These
include performance measurement; financial planning, analysis and consolidation;
management reporting; customer relationship analysis; partner relationship
analysis; product profitability; budgeting, planning and forecasting; and demand
and capacity planning. Hyperion is headquartered in Sunnyvale, California.
RISK FACTORS
Hyperion operates in a very competitive and rapidly changing environment
that involves numerous risks, some of which are beyond Hyperion's control. The
following discussion highlights some of these risks.
GENERAL ECONOMIC CONDITIONS.
The revenue growth and profitability of Hyperion depends on the overall
demand for computer software and services, which in turn depends on general
economic and business conditions. A softening of demand for computer software
caused by weakening of the economy may result in decreased revenues or lower
growth rates. There can be no assurance that Hyperion will be able to
effectively promote revenue growth rates in all economic conditions.
COMPETITIVE ENVIRONMENT.
The markets in which Hyperion competes are intensely competitive, highly
fragmented and characterized by rapidly changing technology and evolving
standards. Hyperion has experienced, and expects that it will continue to
experience, increased competition from current and potential competitors, some
of whom may have significantly greater financial, technical, marketing and other
resources than Hyperion. Hyperion expects additional competition as other
established and emerging companies enter into the enterprise business analysis
software market and new products and technologies are introduced. Increased
competition could result in price reductions, fewer customer orders, reduced
gross margins and loss of market share, any of which would materially adversely
affect Hyperion's business, operating results and financial condition.
PRICING.
Intense competition in the various markets in which Hyperion competes
may put pressure on Hyperion to reduce prices on certain products, particularly
in the markets where certain vendors offer deep discounts in an effort to
recapture or gain market share or to sell other software or hardware products.
Moreover, any broadly based changes to Hyperion's or its competitors pricing
packaging or distribution models could lead to a decline or delay in sales as
Hyperion's sales force and its customers adjust to the new models. Any such
price reductions and resulting lower license revenues could have a material
adverse effect on Hyperion's business, results of operations or
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financial position if Hyperion cannot offset these price reductions with a
corresponding increase in sales volumes or lower spending.
HIRING AND RETENTION OF EMPLOYEES.
Hyperion's future operating results depend in significant part upon the
continued service of its key technical and senior management personnel.
Hyperion's future success also depends on its continuing ability to attract and
retain highly qualified technical, sales, and managerial personnel. Competition
for such personnel is intense, and there can be no assurance that Hyperion will
retain its key managerial or technical personnel or attract such personnel in
the future. Hyperion has at times experienced and continues to experience
difficulty in recruiting qualified personnel and there can be no assurance that
Hyperion will not experience such difficulties in the future. Hyperion, either
directly or through personnel search firms, actively recruits qualified research
and development, financial and sales and marketing personnel. If Hyperion is
unable to hire and retain qualified personnel in the future, such inability
could have a material adverse effect on Hyperion's business, operating results
and financial condition.
BACK-ENDED QUARTERS.
Quarterly revenues and operating results are highly dependent on the
volume and timing of the signing of licensing agreements and product deliveries
during the quarter, which are difficult to forecast. A significant portion of
Hyperion's quarterly software licensing agreements is concluded in the last
month of the fiscal quarter, generally with a concentration of such revenues
earned in the final ten business days of that month. Due to the relatively fixed
nature of certain costs, including personnel and facilities expenses, a decline
or shortfall in quarterly and/or annual revenues typically results in lower
profitability or may result in losses.
INTERNATIONAL OPERATIONS.
A substantial portion of Hyperion's revenues is derived from
international sales and is therefore subject to the related risks, including the
general economic conditions in each country, the overlap of different tax
structures, the difficulty of managing an organization spread over various
countries, changes in regulatory requirements, compliance with a variety of
foreign laws and regulations, longer payment cycles and volatilities of exchange
rates in certain countries. There can be no assurances that Hyperion will be
able to successfully address each of these challenges in the near term. Other
risks associated with international operations include import and export
licensing requirements, trade restrictions and changes in tariff rates.
A significant portion of Hyperion's business is conducted in currencies
other than the U.S. dollar. Changes in the value of major foreign currencies
relative to the value of the U.S. dollar could have a material adverse effect on
Hyperion's business, operating results and financial condition.
ORGANIZATIONAL AND PRODUCT INTEGRATION RELATED TO BUSINESS COMBINATIONS.
Hyperion has made and expects to continue to make acquisitions of,
mergers with, or significant investments in, businesses that offer complementary
products, services and technologies. There are risks involved in business
combinations, including but not limited to: the possibility that Hyperion pays
more than the value it derives from the acquisition; the difficulty of
integrating the operations and personnel of the acquired businesses; the
possibility that all aspects of the integration are not completed or that all of
the anticipated synergies of the acquisition are not realized; the potential
product liability associated with selling the acquired company's products; the
potential disruption of Hyperion's ongoing business and the distraction of
management from Hyperion's business. These factors could have a material adverse
effect on Hyperion's business, results of operations or financial position,
especially in the case of a large acquisition.
PRODUCT ENHANCEMENT AND NEW PRODUCT INTRODUCTIONS.
Hyperion competes in a market characterized by rapid technological
advances in hardware and software development, evolving standards in computer
hardware and software technology and frequent new product
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introductions and enhancements. Hyperion has recently expanded its product
offerings to include products in market segments it believes have high and/or
growing rates of customer demand, such as customer relationship management, web
analysis, and performance measurement. Such entry into new markets has inherent
risks, including, but not limited to, competition from earlier and more
established entrants, general economic conditions, market acceptance of initial
product releases, marketing effectiveness and the accuracy of assumptions about
the nature of customer demand. Hyperion's failure to successfully introduce,
market and sell new products or enhance and improve its existing products in a
timely manner, and position and/or price its products, undetected errors or
delays in new products or new versions of a product and/or the failure of
anticipated market growth could have a material adverse effect on Hyperion's
business, results of operations or financial position.
PARTNER SUPPORT OF HYPERION ESSBASE API.
Hyperion's future success will depend in part upon the availability of
third party tools and applications that address customer requirements and work
with Hyperion's business analysis platform and Hyperion Essbase through the
Hyperion Essbase Application Programming Interface ("API"). Failure by third
parties to support Hyperion's API, or failure by Hyperion to maintain, develop
and market competitive business analysis applications or to adopt industry
standard APIs, if and when they emerge, could materially adversely affect
Hyperion's business, operating results and financial condition.
CONVERSION OF INTERNAL FINANCIAL SYSTEMS.
Hyperion is in the process of reengineering certain of its internal
financial management processes and migrating its internal financial systems to
an Enterprise Resource Planning ("ERP") solution provided through an outsourcing
engagement with Arthur Andersen LLP. Arthur Andersen began performing certain
accounting functions for Hyperion in July 2000. Hyperion currently anticipates
that the transition of remaining identified activities will be completed by the
end of fiscal 2001. There can be no assurance, however, that such migration will
be completed on schedule or will not cause a disruption to Hyperion's operations
or any resulting disruption will not have an adverse impact on Hyperion's
business, operating results and financial condition.
SALES FORECASTS.
Hyperion uses a "pipeline" system, a common industry practice, to
forecast sales and trends in Hyperion's business. Hyperion's sales personnel
monitor the status of proposals, such as the date when they estimate that a
customer will make a purchase decision and the potential dollar amount of the
sale. Management aggregates these estimates periodically in order to generate a
sales pipeline. Management compares the pipeline at various points in time to
look for trends in Hyperion's business. While this pipeline analysis is useful
to management in business planning and budgeting, these pipeline forecasts are
only estimates and may not correlate to revenues in a particular quarter or over
a longer period of time. A significant discrepancy between actual results and
sales forecasts could cause Hyperion to improperly plan or budget and thereby
adversely affect its business or results of operations.
SALES FORCE TRANSITION.
Hyperion has restructured or made other adjustments to its sales force
operations in the past and may do so in the future. These changes have
historically resulted in temporary sales productivity issues in the short term.
ENFORCEMENT OF HYPERION'S INTELLECTUAL PROPERTY RIGHTS.
Hyperion relies primarily on a combination of patent, copyright and
trademark laws, trade secrets, confidentiality procedures and contractual
provisions to protect its proprietary rights. There can be no assurance that
Hyperion's means of protecting its proprietary rights in the United States or
abroad will be adequate or that competitors will not independently develop
similar technology.
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POSSIBILITY OF INFRINGEMENT CLAIMS.
Hyperion expects that software product developers will increasingly be
subject to infringement claims as the number of products and competitors in
Hyperion's industry segment grows and the functionality of products in different
industry segments overlaps. Any such claims, with or without merit, could be
time consuming to defend, result in costly litigation, divert management's
attention and resources, cause product shipment delays or require Hyperion to
enter into royalty or licensing agreements. Such royalty or licensing
agreements, if required, may not be available on terms acceptable to Hyperion,
if at all. In the event of a successful claim of product infringement against
Hyperion and failure or inability of Hyperion to license the infringed or
similar technology, Hyperion's business, operating results and financial
condition would be materially adversely affected.
POSSIBLE VOLATILITY OF STOCK PRICE.
The market price of Hyperion's common stock has experienced significant
fluctuations and may continue to fluctuate significantly. The market price of
the common stock may be significantly affected by factors, including but not
limited to, the announcement of new products, product enhancements or
technological innovation by Hyperion or its competitors, changes in Hyperion's
or its competitors' results of operations, changes in revenue and revenue growth
rates for Hyperion as a whole or for specific geographic areas or business
units, changes in earnings estimates by market analysts, and general market
conditions or market conditions specific to particular industries. Technology
stocks have experienced wide fluctuations in prices, which sometimes have been
unrelated to their operating performance. The market price of Hyperion's common
stock could be adversely affected by such fluctuations.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements that involve risks and uncertainties. The statements contained or
incorporated by reference in this prospectus that are not purely historical are
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended, including without limitation statements regarding Hyperion's
expectations, beliefs, intentions or strategies regarding the future. All
forward-looking statements included in this document are based on information
available to Hyperion on the date hereof, and all forward-looking statements in
documents incorporated by reference are based on information available to
Hyperion as of the date of such documents. Hyperion assumes no obligation to
update any such forward-looking statements. Hyperion's actual results may differ
materially from those discussed in the forward-looking statements as a result of
certain factors, including those set forth in the risk factors and elsewhere in
this prospectus and incorporated by reference herein. In evaluating Hyperion's
business, prospective investors should carefully consider the following factors
in addition to the other information set forth in this prospectus and
incorporated by reference herein.
USE OF PROCEEDS
Hyperion will not receive any of the proceeds from the sale of the
shares by the selling stockholder.
SELLING STOCKHOLDER
The following table sets forth certain information, as of September 30,
2000, with respect to the number of shares of common stock owned by the selling
stockholder and as adjusted to give effect to the sale of the shares offered
hereby. The shares are being registered to permit public secondary trading of
the shares, and the selling stockholder may offer the shares for resale from
time to time. See "Plan of Distribution."
The shares being offered by the selling stockholder were acquired from
Hyperion pursuant to a Restricted Stock Award Agreement with Jeffrey R. Rodek
dated October 11, 1999. Mr. Rodek is the Chairman of the Board and Chief
Executive Officer of Hyperion Solutions Corporation. The common stock was issued
pursuant to the exemption from the registration requirements of the Securities
Act provided by Section 4(2) thereof.
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Hyperion has filed with the Commission, under the Securities Act, a
Registration Statement on Form S-8, of which this prospectus forms a part, with
respect to the resale of the shares from time to time on the Nasdaq National
Market or in privately-negotiated transactions.
The shares offered by this prospectus may be offered from time to time
by the selling stockholder named below:
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Shares Beneficially Owned
Prior to Offering
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Number of Number of Shares
Name and Address of Selling Stockholder Shares Percent(1) Being Offered
--------------------------------------- --------- ---------- ---------------
<S> <C> <C> <C>
Jeffrey R. Rodek(2) 474,771 1.4% 100,000
c/o Hyperion Solutions Corporation
1344 Crossman Avenue
Sunnyvale, CA 94089
</TABLE>
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(1) Based upon 33,181,745 shares of common stock outstanding on November 15,
2000. This Registration Statement shall also cover any additional shares of
common stock which become issuable in connection with the shares registered
for sale hereby 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 Hyperion's
outstanding shares of common stock.
(2) Includes options exercisable into 373,750 shares of common stock and 100,000
shares subject to a restricted stock award.
PLAN OF DISTRIBUTION
Hyperion will receive no proceeds from this offering. The shares offered
hereby may be sold by the selling stockholder from time to time in transactions
in the over-the-counter market, on the Nasdaq National Market, in privately
negotiated transactions, or by a combination of such methods of sale, at fixed
prices which may be changed, at market prices prevailing at the time of sale, at
prices related to prevailing market prices or at negotiated prices. The selling
stockholder may effect such transactions by selling the shares to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholder and/or the
purchasers of the shares for whom such broker-dealers may act as agents or to
whom they sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions).
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with.
The selling stockholder and any broker-dealers or agents that
participate with the selling stockholder in the distribution of the shares may
under certain circumstances be deemed to be "underwriters" within the meaning of
the Securities Act, and any commissions received by them and any profit realized
on the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. The selling stockholder may
agree to indemnify such broker-dealers against certain liabilities, including
liabilities under Securities Act.
Any broker-dealer participating in such transactions as agent may
receive commissions from the selling stockholder (and, if it acts as agent for
the purchase of such shares, from such purchaser). Broker-dealers may agree with
the selling stockholder to sell a specified number of shares at a stipulated
price per share, and, to the extent such a broker-dealer is unable to do so
acting as agent for the selling stockholder, to purchase as principal any
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unsold shares. Brokers-dealers who acquire shares as principal may thereafter
resell such shares from time to time in transactions (which may involve crosses
and block transactions and which may involve sales to and through other
broker-dealers, including transactions of the nature described above) in the
over-the-counter market, on the Nasdaq National Market, in privately negotiated
transactions, or by a combination of such methods of sale, at fixed prices that
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
Under applicable rules and regulations under the 1934 Act, any person
engaged in the distribution of the shares may not simultaneously engage in
market making activities with respect to the common stock of Hyperion for a
period of two business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, the selling stockholder will be
subject to applicable provisions of the 1934 Act and the rules and regulations
thereunder, including, without limitation, Rules 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of shares of Hyperion's
common stock by the selling stockholder.
The selling stockholder will pay all commissions and other expenses
associated with the sale of shares by it. The shares offered hereby are being
registered pursuant to contractual obligations of Hyperion, and Hyperion has
agreed to bear certain expenses in connection with the registration and sale of
the shares being offered by the selling stockholder. Hyperion has not made any
underwriting arrangements with respect to the sale of shares offered hereby.
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for us by
Heller Ehrman White & McAuliffe LLP, Palo Alto, California, counsel to Hyperion.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents previously filed by Hyperion with the Commission
pursuant to the 1934 Act are hereby incorporated by reference in this prospectus
and made a part hereof:
1. Hyperion's Annual Report on Form 10-K for the fiscal year ended June
30, 2000, filed with the Commission on September 28, 2000;
2. Hyperion's Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 2000, filed with the Commission on November 14, 2000;
3. The description of Hyperion's Capital Stock contained in Hyperion's
Registration Statement filed on Form 8-A, dated October 9, 1995, and as amended
on Form 8-A/A, dated November 3, 1995.
All documents filed with the Commission pursuant to Section 13(a),
13(c),14 or 15(d) of the Exchange Act after the date of this prospectus and
prior to the termination of the offering shall be deemed to be incorporated by
reference into this prospectus and to be a part hereof from the date of filing
of such documents. Any statement contained in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or
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supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as modified or superseded, to constitute a part of this
prospectus.
Upon written or oral request, Hyperion will provide without charge to
each person to whom a copy of the prospectus is delivered a copy of the
documents incorporated by reference herein (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference
herein). Requests should be directed to Investor Relations, Hyperion Solutions
Corporation, 1344 Crossman Avenue, Sunnyvale, California 94089, (408) 744-9500.
Hyperion is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed by
Hyperion may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549, and at the Commission's following Regional
Offices: Chicago Regional Office, Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661; and New York Regional Office, 7 World Trade
Center, New York, New York 10048. Copies of such material can also be obtained
at prescribed rates from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549-1004. Reports, proxy
and information statements and other information filed electronically by
Hyperion with the Commission are available at the Commission's world wide web
site at http://www.sec.gov.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by Hyperion Solutions
Corporation (formerly Arbor Software Corporation) (the "Registrant") with the
Securities and Exchange Commission (the "Commission"), are hereby incorporated
by reference in this Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 2000;
(b) Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2000; and
(c) Registrant's Registration Statement No. 0-97098 on Form 8-A filed
with the Commission on September 19, 1995 pursuant to Section 12
of the Securities Exchange Act of 1934, as amended (the "1934
Act"), as amended on Form 8-A/A, dated November 3, 1995, in which
there is described the terms, rights and provisions applicable to
the Registrant's outstanding Common Stock.
All documents subsequently filed pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and prior to the termination of the offering of the
securities offered hereby shall be deemed to be incorporated by reference into
this registration statement and to be a part hereof from the respective dates of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein, or in any other subsequently filed document that
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
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, as amended,
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
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Heller Ehrman White & McAuliffe LLP.
23.1 Consent of Heller Ehrman White & McAuliffe LLP (filed as part of
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
24.1 Power of Attorney (page II-4).
99.1 1995 Stock Option/Stock Issuance Plan, as amended and restated
through November 15, 2000.
99.2 Employee Stock Purchase Plan, as amended and restated through
November 15, 2000.
99.3 Restricted Stock Award Agreement with Jeffrey R. Rodek, dated
October 11, 1999 (Incorporated herein by reference is Exhibit
10.2 to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended December 31, 1999).
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 Securities Act of 1933, as amended (the "Securities Act");
(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;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do 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 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, 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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<PAGE> 13
(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 Stock Option Agreement and 1999 Stock Option Plan offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 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 provisions described in Item 6, 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.
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<PAGE> 14
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 Sunnyvale, State of California, on November 30, 2000.
HYPERION SOLUTIONS CORPORATION
By: /s/ JEFFREY R. RODEK
-------------------------------------------
Jeffrey R. Rodek
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints David
W. Odell and Jeffrey R. Rodek his or her true and lawful attorneys in fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him or her and in his name, place and stead, in any and all capacities, to
sign any or all amendments (including post effective amendments) to the
Registration Statement, and to sign any registration statement for the same
offering covered by this Registration Statement that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and
all post effective amendments thereto, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, each acting alone, or his
or her substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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<PAGE> 15
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities as of November 30, 2000.
<TABLE>
<CAPTION>
Signature Title
------------------------------- --------------------------------------
<S> <C>
/s/ STEPHEN V. IMBLER President, Chief Operating Officer
-------------------------------
Stephen V. Imbler
/s/ JEFFREY R. RODEK Chairman of the Board of Directors and
------------------------------- Chief Executive Officer
Jeffrey R. Rodek
/s/ DAVID W. ODELL Chief Financial Officer
-------------------------------
David W. Odell
/s/ HENRY R. AUTRY Director
-------------------------------
Henry R. Autry
Director
-------------------------------
Kenneth A. Goldman
/s/ GARY G. GREENFIELD Director
-------------------------------
Gary G. Greenfield
/s/ ALDO PAPONE Director
-------------------------------
Aldo Papone
</TABLE>
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<PAGE> 16
INDEX TO EXHIBITS
-----------------
5.1 Opinion of Heller Ehrman White & McAuliffe LLP.
23.1 Consent of Heller Ehrman White & McAuliffe LLP (filed as part of
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, Independent Auditors.
24.1 Power of Attorney (page II-4).
99.1 1995 Stock Option/Stock Issuance Plan, as amended and restated
through November 15, 2000.
99.2 Employee Stock Purchase Plan, as amended and restated through
November 15, 2000.
99.3 Restricted Stock Award Agreement with Jeffrey R. Rodek, dated
October 11, 1999 (Incorporated herein by reference is Exhibit
10.2 to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended December 31, 1999).
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