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Registration No. 333-
As filed with the Securities and Exchange Commission on November 25, 1996
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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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ROGUE WAVE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 93-1064214
(State of Incorporation) (I.R.S. Employer Identification No.)
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850 SW 35TH STREET
CORVALLIS, OREGON 97333
(541) 754-3010
(Address and telephone number of principal executive offices)
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1996 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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THOMAS KEFFER, PH.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ROGUE WAVE SOFTWARE, INC.
850 SW 35TH STREET
CORVALLIS, OREGON 97333
(541) 754-3010
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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COPIES TO:
MARK P. TANOURY, ESQ.
JAMES F. FULTON, JR.
COOLEY GODWARD LLP
3000 SAND HILL ROAD
BUILDING 3, SUITE 230
MENLO PARK, CALIFORNIA 94025-7116
(415) 843-5000
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES TO AMOUNT TO BE MAXIMUM MAXIMUM
BE REGISTERED REGISTERED OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
SHARE PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par 3,080,456 shares $0.15-$12.00 $23,511,759 $7,125
value $.001)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(a) under the Securities Act of
1933. The chart below details the calculation of the registration fee.
Number of Offering Price Aggregate
Securities Shares Per Share Offering Price
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Common Stock issuable 1,514,583 $0.15-$8.25 $4,721,283
pursuant to outstanding
options under the 1996
Equity Incentive Plan
Common Stock available 1,215,873 $12.00 $14,590,476
for grant under the 1996
Equity Incentive Plan
Common Stock available 350,000.00 $12.00 $4,200,000
for issuance under the
Employee Stock Purchase
Plan
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after this Registration Statement becomes effective.
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INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Rogue Wave Software, Inc., a Delaware
corporation (the "Company" or the "Registrant") with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
(a) The Company's latest prospectus filed on November 22, 1996, as amended
through the date hereof, with the Commission pursuant to Rule 424(b)(4) under
the Securities Act of 1933, as amended (the "Securities Act"), that contains
audited financial statements for the Company's latest fiscal year for which such
statements have been filed;
(b) A description of the Company's Common Stock, which is contained in the
Form 8-A Registration Statement filed by the Company with the Commission on
October 4, 1996, as amended through the date hereof; and
(c) All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") prior to the filing of a post effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part of this registration statement
from the date of the filing of such reports and documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Registrant
has broad powers to indemnify its directors and officers against liabilities
they may incur in such capacities, including liabilities under the Securities
Act.
The Registrant's Certificate of Incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its stockholders. These provisions do not eliminate
the directors' duty of care and, in appropriate circumstances, equitable
remedies such an 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 any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
law. The provision does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
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The Registrant has entered into agreements with its directors and executive
officers that require the Registrant to indemnify such persons against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
(including expenses of a derivative action) in connection with any proceeding,
whether actual or threatened, to which any such person may be made a party by
reason of the fact that such person is or was a director or officer of the
Registrant or any of its affiliated enterprises, provided such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Registrant and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
NUMBER DESCRIPTION
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4.1(1) Amended and Restated Certificate of Incorporation of Registrant.
4.2(1) Bylaws of Registrant.
4.2(1) Specimen Stock Certificate.
4.3(1) Amended and Restated Investors' Rights Agreement between the
Registrant and certain investors, dated November 10, 1995, as amended
June 27, 1996.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to Page 4.
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(1) Filed as an exhibit to the Form SB-2 Registration Statement (No. 33-13517),
as amended through the date hereof and incorporated herein by reference.
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UNDERTAKINGS
(d) The undersigned registrant hereby undertakes:
a. 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;
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.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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)(i) and (a)(ii) do not apply if
the registration statement is on Form S 3 or Form S 8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
b. 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
c. To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(e) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(f) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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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 Corvallis, State of Oregon, on November 22, 1996.
ROGUE WAVE SOFTWARE, INC.
By: /s/ THOMAS KEFFER
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Thomas Keffer
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas Keffer and Robert M. Holburn, Jr.,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ THOMAS KEFFER President, Chief Executive Officer November 22, 1996
- -------------------------------- Chairman of the Board (PRINCIPAL
Thomas Keffer EXECUTIVE OFFICER)
/s/ DAN WHITAKER Executive Vice President, November 22, 1996
- -------------------------------- Marketing and Director
Dan Whitaker
/s/ ROBERT M. HOLBURN, JR. Chief Financial Officer and November 22, 1996
- -------------------------------- Secretary (PRINCIPAL FINANCIAL AND
Robert M. Holburn, Jr. ACCOUNTING OFFICER)
/s/ THOMAS M. ATWOOD Director November 22, 1996
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Thomas M. Atwood
/s/ HOWARD M. LOVE, JR. Director November 22, 1996
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Howard M. Love, Jr.
/s/ RICHARD P. MAGNUSON Director November 22, 1996
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Richard P. Magnuson
/s/ THOMAS H. PETERSON Director November 22, 1996
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Thomas H. Peterson
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1(1) Amended and Restated Certificate of Incorporation of Registrant.
4.2(1) Bylaws of Registrant.
4.2(1) Specimen Stock Certificate.
4.3(1) Amended and Restated Investors' Rights Agreement between the
Registrant and certain investors, dated November 10, 1995, as
amended June 27, 1996.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to Page 4.
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(1) Filed as an exhibit to the Form SB-2 Registration Statement (No. 33-13517),
as amended through the date hereof and incorporated herein by reference.
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EXHIBIT 5.1
November 25, 1996
Rogue Wave Software, Inc.
850 SW 35th Street
Corvallis, Oregon 97333
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Rogue Wave Software, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to 3,080,456
shares of the Company's Common Stock, $.001 par value, (the "Shares")
pursuant to its 1996 Equity Incentive Plan and the Employee Stock Purchase
Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement,
the Plans, your Certificate of Incorporation and Bylaws, as amended, and such
other documents, records, certificates, memoranda and other instruments as we
deem necessary as a basis for this opinion. We have assumed the genuineness and
authenticity of all documents submitted to us as originals, the conformity to
originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans and the
Registration Statement, will be validly issued, fully paid, and nonassessable
(except as to shares issued pursuant to certain deferred payment arrangements,
which will be fully paid and nonassessable when such deferred payments are made
in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Yours very truly,
COOLEY GODWARD LLP
/S/ MARK P. TANOURY
Mark P. Tanoury
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 16, 1996 relating to the
consolidated financial statements of Rogue Wave Software, Inc., which appears on
page F-2 of Rogue Wave Software, Inc.'s Prospectus dated November 21, 1996 filed
pursuant to Rule 424(b) of the Securities Act of 1933.
KPMG PEAT MARWICK LLP
Portland, Oregon
November 21, 1996
