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As filed with the Securities and Exchange Commission on July 2, 1997
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
TSI INTERNATIONAL SOFTWARE LTD.
(Exact name of issuer as specified in its charter)
Delaware 06-1132156
(State of Incorporation) (I.R.S. Employer Identification No.)
45 Danbury Road, Wilton, Connecticut 06897
(Address of Principal Executive Office Including Zip Code)
TSI INTERNATIONAL SOFTWARE LTD.
1997 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full title of the plan)
Constance F. Galley
President and Chief Executive Officer
TSI International Software Ltd.
45 Danbury Road
Wilton, Connecticut 06897
(203) 761-8600
(Name, address and telephone number of agent for service)
Copies to:
MARK C. STEVENS
JEFFREY R. VETTER
G. CHIN CHAO
FENWICK & WEST LLP
Two Palo Alto Square
Palo Alto, CA 94306
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<CAPTION>
===================================================================================================================
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Amount Maximum Proposed Maximum
Securities to to be Offering Aggregate Offering Amount of
Be Registered Registered Price per Share Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 750,000(1) $9.00 (2) $6,750,000 $2045.45
==================================================================================================================
</TABLE>
(1) Shares available for purchase as of July 2, 1997 under the 1997 Employee
Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and 457(a) under the Securities Act of 1933
and based upon the initial public offering price of the Registrant's Common
Stock.
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Item 1. Plan Information.*
- ------ ----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
- ------ -----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 (the "Securities Act") and the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
1. The Company's prospectus filed with the Commission on July 2, 1997
under Rule 424(b) of the Securities Act of 1933, as amended, which contains
audited financial statements for the fiscal year ended December 31, 1996, and
pages S-1 and S-2 of the Company's Registration Statement on Form S-1 (File No.
333-27293) which contains the Financial Statement Schedule.
2. The description of the Company's Common Stock contained in the
Company's registration statement filed with the Commission under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating such description; and
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange 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 in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
As permitted by the Delaware General Corporation Law, the Registrant's
Certificate of Incorporation includes a provision that eliminates the personal
liability of its directors for monetary damages for breach of fiduciary duty as
a director to the fullest extent permitted by the Delaware General Corporation
Law. As permitted by Section 145 of the Delaware General Corporation Law, the
Bylaws of the Registrant provide that (i) the Registrant is required to
indemnify its directors and executive officers to the fullest extent permitted
by the Delaware General Corporation Law; (ii) to the fullest extent permitted by
the Delaware General Corporation Law, the Registrant is required to advance all
expenses, as incurred, to its directors and executive officers in connection
with a legal proceeding (subject to certain exceptions); (iii) the rights
conferred in the Bylaws are not exclusive; (iv) the Registrant may, in its
discretion indemnity or advance expenses to persons whom the Registrant is not
obligated to indemnify or advance expenses; (v) the Registrant is authorized to
enter into indemnification agreements with its directors, officers, employees
and agents or any person serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including employee benefit plans; and (vi) the
Registrant may not retroactively amend the Bylaw provisions relating to
indemnification.
II-2
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The Registrant intends to enter into indemnity agreements with each of its
directors and executive officers. The indemnity agreements provide that
directors and executive officers will be indemnified and held harmless to the
fullest possible extent permitted by law including against all expenses
(including attorneys' fees), judgments, fines and settlement amounts paid or
reasonably incurred by them in any action, suit or proceeding, including any
derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of the Registrant or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Registrant. The
Registrant will not be obligated pursuant to the agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims
(i) initiated by the indemnified party and not by way of defense, except with
respect to a proceeding authorized by the Board and successful proceedings
brought to enforce a right to indemnification under the indemnity agreements;
(ii) for any amounts paid in settlement of a proceeding unless the Registrant
consents to such settlement; (iii) on account of any suit in which judgment is
rendered against the indemnified party for an accounting of profits made from
the purchase or sale by the indemnified party of securities of the Registrant
pursuant to the provisions of (S)16(b) of the Securities Exchange Act of 1934
and related laws; (iv) on account of conduct by an indemnified party that is
finally adjudged to have been in bad faith or conduct that the indemnified party
did not reasonably believe to be in, or not opposed to, the best interests of
the Registrant; (v) on account of any criminal action or proceeding arising out
of conduct that the indemnified party had reasonable cause to believe was
unlawful; or (vi) if a final decision by a court having jurisdiction in the
matter shall determine that such indemnification is not lawful.
The indemnity agreement requires a director or executive officer to
reimburse the Registrant for expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, his or her indemnity agreement or otherwise to
be indemnified for such expenses. The indemnity agreement provides that it is
not exclusive of any rights a director or executive officer may have under the
Certificate of Incorporation, Bylaws, other agreements, any majority-in-interest
vote of the stockholders or vote of disinterested directors, the Delaware law,
or otherwise.
The indemnification provision in the Bylaws, and the indemnity agreements
entered into between the Registrant and its directors and executive officers,
may be sufficiently broad to permit indemnification of the Registrant's
directors and executive officers for liabilities arising under the Securities
Act.
As authorized by the Registrant's Bylaws, the Registrant, with approval by
the Registrant's Board, is seeking, and expects to obtain, directors and
officers liability insurance.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
- ---------- -----------
4.01* Registrant's Certificate of Incorporation
(previously filed on May 16, 1997 as Exhibit 3.01
to Registrant's Registration Statement (the
"Registration Statement") on Form S-1 (File No.
333-27293))
4.02* Form of Amended and Restated Certificate of
Incorporation to be filed after the consummation
of Registrant's initial public offering
(previously filed on June 6, 1997 as Exhibit 3.02
to Pre-effective Amendment No. 1 ("Amendment 1")
to the Registration Statement
4.03* Form of Specimen Certificate for Registrant's
Common Stock (previously filed as Exhibit 4.01 to
Amendment 1)
4.04* Stockholders Agreement dated as of June 1, 1989,
as amended (previously filed as Exhibit 4.02 to
the Registration Statement)
II-3
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4.05* 1989 Stock Purchase Agreement, as amended
(previously filed as Exhibit 4.03 to Amendment 1)
4.06* Registrant's 1997 Employee Stock Purchase Plan
(previously filed as Exhibit 10.04 to the
Registration Statement)
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01)
23.02 Consent of KPMG Peat Marwick LLP
24.01 Power of Attorney (See page II-7)
- ---------------------------
* These exhibits were previously filed with the Commission as indicated and
are incorporated herein by reference.
Item 9. Undertakings.
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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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(b) 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 thereto) 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) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(c) 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 (1)(a) and (1)(b) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(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 offering.
II-4
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(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
- ----
(5) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual report to
security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3
under the Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is not set
forth in the prospectus, to deliver, or cause to be delivered to each person to
whom the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such interim
financial information.
(6) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
II-5
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SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the registrant,
TSI International Software Ltd., 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 Wilton, State of
Connecticut, on July 1, 1997.
TSI INTERNATIONAL SOFTWARE LTD.
By: /s/ CONSTANCE F. GALLEY
-----------------------------
Constance F. Galley
Chief Executive Officer
II-6
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POWER OF ATTORNEY
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Each person whose signature appears below constitutes and appoints
Constance F. Galley and Ira A. Gerard, his true and lawful attorneys-in-fact and
agents with full power of substitution, 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 exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting to 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 either of
them, or their or his substitute or substitutes, 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.
Signature Title Date
- --------------------------------------------------------------------------------
PRINCIPAL EXECUTIVE
OFFICER AND DIRECTOR
/s/ CONSTANCE F. GALLEY President and Chief Executive July 1, 1997
- ------------------------- Officer and Director
Constance F. Galley
PRINCIPAL FINANCIAL AND
PRINCIPAL ACCOUNTING OFFICER
/s/ IRA A. GERARD Vice President, Finance and July 1, 1997
- ------------------------- Administration, and Chief
Ira A. Gerard Financial Officer and Secretary
ADDITIONAL DIRECTORS
/s/ STEWART K.P. GROSS Director July 2, 1997
- -------------------------
Stewart K.P. Gross
/s/ ERNEST E. KEET Director July 2, 1997
- -------------------------
Ernest E. Keet
/s/ JOHN J. PENDRAY Director July 2, 1997
- -------------------------
John J. Pendray
/s/ DENNIS G. SISCO Director July 2, 1997
- -------------------------
Dennis G. Sisco
II-7
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EXHIBIT 5.01
------------
July 2, 1997
TSI International Software Ltd.
45 Danbury Road
Wilton, CT 06897
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about July 2, 1997 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 750,000 shares of your Common Stock (the "Stock"), all of which are
subject to issuance by you upon the exercise of purchase rights granted or to be
granted under your 1997 Employee Stock Purchase Plan, as amended (the "Purchase
Plan"). In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the Exhibits filed as a part
thereof;
(2) the Prospectus prepared in connection with the Registration Statement;
(3) the Purchase Plan;
(4) the minutes of meetings of the stockholders and Board of Directors
relating to the Purchase Plan and the Registration Statement that you have
provided to us;
(5) the stock records for both you and your predecessor, TSI International
Ltd., a Connecticut corporation, that you have provided to us (consisting of a
list of stockholders and a list of option holders and a list of warrant holders
as of May 31, 1997 regarding your capital stock that was prepared by you);
(6) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and other
representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to the legal capacity of all natural persons,
the genuineness of all signatures on original documents, the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as copies, the lack of any undisclosed terminations,
modifications, waivers or amendments to any documents reviewed by us and the due
execution and delivery of all documents where due execution and delivery are
prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely upon
our examination of the documents referred to above and have assumed the current
accuracy and completeness of the information included in the documents referred
to above. We have made no independent investigation or other attempt to verify
the accuracy of any of such information or to determine
<PAGE>
TSI International Software Ltd.
July 2, 1997
Page 2
the existence or non-existence of any other factual matters; however, we are not
-------
aware of any facts that would lead us to believe that the opinion expressed
herein is not accurate.
Based upon the foregoing, it is our opinion that the 750,000 shares of
Stock that may be issued and sold by you upon the exercise of purchase rights
granted or to be granted under the Purchase Plan, when issued and sold in
accordance with the Purchase Plan and purchase agreements to be entered into
thereunder, and in the manner referred to in the relevant Prospectus associated
with the Registration Statement, will be legally issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/S/FENWICK & WEST LLP
-------------------------------
FENWICK & WEST LLP
<PAGE>
EXHIBIT 23.02
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CONSENT OF INDEPENDENT AUDITORS
----------------------------------
The Board of Directors
TSI International Software, Ltd.
We hereby consent to the use of our reports incorporated herein by
reference filed.
KPMG PEAT MARWICK LLP
Stamford, Connecticut
July 2, 1997
