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As filed with the Securities and Exchange Commission on May 20, 1998
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
-----------------------
RED BRICK SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0145392
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
485 ALBERTO WAY
LOS GATOS, CALIFORNIA 95032
(Address of principal executive offices) (Zip Code)
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RED BRICK SYSTEMS, INC.
1995 STOCK OPTION PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
OPTIONS UNDER WRITTEN COMPENSATION AGREEMENT
(Full title of the Plans)
-----------------------
MARGARET R. BRAUNS
VICE PRESIDENT, FINANCE,
CHIEF FINANCIAL OFFICER AND SECRETARY
RED BRICK SYSTEMS, INC.
485 ALBERTO WAY, LOS GATOS, CALIFORNIA 95032
(Name and address of agent for service)
(408) 399-3200
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
---------- ------------ ----------------- ---------------- ------------
<S> <C> <C> <C> <C>
1995 Stock Option Plan
- ----------------------
Options to purchase Common Stock 600,000 N/A N/A N/A
Common Stock, $0.0001 par value 600,000 shares $6(2) $3,600,000(2) $1,062
Supplemental Stock Option Plan
- -------------------------------
Options to purchase Common Stock 500,000 N/A N/A N/A
Common Stock, $0.0001 par value 500,000 shares $6(2) $3,000,000(2) $ 885
1998 Employee Stock Purchase Plan
- ---------------------------------
Common Stock, $0.0001 par value 1,500,000 shares $6(2) $9,000,000(2) $2,655
Written Compensation Agreements
- ----------------------------------
Options to Purchase Common Stock 235,000 N/A N/A N/A
Common Stock
Anthony W. Layzell 105,000 $8.125 (3) $ 853,125(3) $ 251.67
Margaret R. Brauns 130,000 $7.5625(3) $ 933,125(3) $ 290
===========================================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1995 Stock Option Plan, the
Supplemental Stock Option Plan, the 1998 Employee Stock Purchase Plan, the
written compensation agreement between the Registrant and Mr. Layzell, and
the written compensation agreement between the Registrant and Ms. Brauns,
and 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 Red Brick Systems, Inc.
(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 average of the high
and low selling prices per share of Common Stock of Red Brick Systems, Inc.
as reported on the Nasdaq National Market on May 19, 1998.
(3) Calculated on the basis of the exercise price per share of the option.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
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Red Brick Systems, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(c) The Registrant's Registration Statement No. 0-27310 on Form 8-A
filed with the SEC on November 30, 1995 and July 23, 1997 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. 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 subsequently filed
document which also 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
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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.
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Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
- -------------- -------
4 Instrument Defining Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 0-27310
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 Ernst & Young LLP, Independent Auditors.
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.
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 Plan, Supplemental Stock Option Plan, 1998 Employee Stock Purchase
Plan, and the written compensation agreements between the Registrant and Mr.
Layzell and Ms. Brauns.
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 Los Gatos, State of California on this 15th day
of May, 1998.
RED BRICK SYSTEMS, INC.
By: /s/ Christoher G. Erickson
-----------------------------------
Christopher G. Erickson
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Red Brick Systems, Inc.,
a Delaware corporation, do hereby constitute and appoint Christopher G. Erickson
and Margaret R. Brauns, 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Christopher G. Erickson Chairman of the Board, President and May 15, 1998
- ---------------------------- Chief Executive Officer
Christopher G. Erickson (Principal Executive Officer)
/s/ Margaret R. Brauns Vice President, Finance, Chief May 15, 1998
- ----------------------- Financial Officer and Secretary
Margaret R. Brauns (Principal Financial and Accounting Officer)
/s/ Thomas A. Bredt Director May 15, 1998
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Thomas A. Bredt
/s/ Andrew K. Ludwick Director May 15, 1998
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Andrew K. Ludwick
/s/ John F. Shoch Director May 15, 1998
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John F. Shoch
Director ______, 1998
- --------------------
John E. Warnock
</TABLE>
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EXHIBIT 5
Opinion and Consent of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP
May 19, 1998
Red Brick Systems, Inc.
485 Alberto Way
Los Gatos, CA 95032
Re: Red Brick Systems, Inc. Registration Statement
for an Aggregate of 2,835,000 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) 600,000 shares of Common Stock
under the Company's 1995 Stock Option Plan, (ii) 500,000 shares of Common Stock
under the Company's Supplemental Stock Option Plan, (iii) 1,500,000 shares of
Common Stock under the Company's 1998 Stock Purchase Plan, (iv) 105,000 shares
pursuant to a Written Compensation Agreement between the Company and Anthony W.
Layzell (the "Layzell Agreement") and (v) 130,000 shares pursuant to a Written
Compensation Agreement between the Company and Margaret R. Brauns (the "Brauns
Agreement"). 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
Plan, the Supplemental Stock Option Plan, the 1998 Stock Purchase Plan and the
Layzell Agreement and the Brauns Agreement 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
--------------------------------------------
Gunderson Dettmer Stough Villeneuve
Franklin & Hachigian, LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Stock Option Plan, the 1998 Employee Stock Purchase
Plan and Options Under Written Compensation Agreement of Red Brick Systems, Inc.
of our report dated January 13, 1998, with respect to the consolidated financial
statements and schedule of Red Brick Systems, Inc., included in its Annual
Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
May 14, 1998
