<PAGE>
As filed with the Securities and Exchange Commission on March 8, 2000
Registration No. 333-______
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 the Registrant as specified in its charter)
Delaware 06-1132156
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
45 Danbury Road
Wilton, Connecticut 06897
(Address of principal executive offices, including zip code)
1997 Equity Incentive Plan
(Full titles of the plans)
Copy to:
Constance F. Galley Jeffrey R. Vetter, Esq.
President and Chief Executive Officer Scott J. Leichtner, Esq.
TSI International Software Ltd. Fenwick & West LLP
45 Danbury Road Two Palo Alto Square
Wilton, Connecticut 06897 Palo Alto, California 94306
(203) 761-8600 (650) 494-0600
- ----------------------------------------- -----------------------------------
(Name, address and telephone number, (Counsel to the Registrant)
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------
Proposed
Amount maximum Proposed
to be offering price maximum aggregate Amount of
Title of securities to be registered registered per share offering price registration fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per 2,500,000 (1) $87.94(2) $219,850,000 $58,041
share
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Represents 2,500,000 additional shares reserved for issuance upon the
exercise of stock options that may be granted under the Registrant's 1997
Equity Incentive Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(c) of the Securities Act of
1933, as amended (the "Securities Act"), based on the average of the high
and low prices of the Registrant's common stock as reported by the Nasdaq
National Market on March 1, 2000.
<PAGE>
Item 1. Plan Information.
- ------ ----------------
The documents containing the information specified in this Item 1
will be sent or given to employees, directors or others as specified by Rule
428(b)(1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, such
documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
- ------ -----------------------------------------------------------
The documents containing the information specified in this Item 2
will be sent or given to employees as specified by Rule 428(b)(1). In accordance
with the rules and regulations of Commission and the instructions to Form S-8,
such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
For the purposes of this registration statement, the terms "we," "our"
and "us" refer to TSI International Software Ltd., a Delaware corporation.
INCORPORATION OF PREVIOUS REGISTRATION STATEMENTS.
- -------------------------------------------------
Pursuant to General Instruction E of Form S-8, we are filing this
Registration Statement with the Commission to include an additional 2,500,000
shares under our 1997 Equity Incentive Plan. Pursuant to this Instruction E, the
contents of our Form S-8 registration statement No. 333-37969 are hereby
incorporated by reference.
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) Our annual report on Form 10-K for the fiscal year ended December
31, 1998;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
since December 31, 1998, including: (1) our quarterly reports on
Form 10-Q for the fiscal quarters ended March 31, June 30 and
September 30, 1999; (2) our current report on Form 8-K filed on
April 1, 1999, as amended on June 1, 1999; and (3) our current
report on Form 8-K filed on October 15, 1999, as amended on
December 15, 1999; and
(c) The description of our common stock contained in our registration
statement on Form 8-A filed under Section 12(g) of the Exchange
Act on June 6, 1997, including any amendment or report filed for
the purpose of updating such description
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities registered hereby have been sold
or which deregisters all securities then remaining unsold, shall be deemed
incorporated into this registration statement by reference and to be a part
hereof from the date of the filing of such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
None.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The following documents are incorporated by reference:
Document
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(a) Our Amended and Restated Certificate of Incorporation,
(incorporated by reference to Exhibit 3.01 to our registration
statement on Form S-1, File No. 333-27293, declared effective
July 2, 1997).
(b) Form of Indemnification Agreement entered into by us with each of
our directors and executive officers (incorporated by reference
to registration statement on Form S-1, File No. 333-27293,
declared effective July 2, 1997).
As permitted by the Delaware General Corporation Law, our Certificate
of Incorporation includes a provision that eliminates the personal liability of
our 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, our Bylaws
provide that (i) we are required to indemnify our 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, we are required to advance all expenses, as incurred, to our 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) we
may, in our discretion indemnify or advance expenses to persons whom we are not
obligated to indemnify or advance expenses; (v) we are authorized to enter into
indemnification agreements with our directors, officers, employees and agents or
any person serving at our request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including employee benefit plans; and (vi) we may not retroactively amend the
Bylaw provisions relating to indemnification.
We have entered into indemnity agreements with each of our 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 us, on account of their services as our directors, officers,
employees or agents or as directors, officers, employees or agents of any other
company or enterprise when they are serving in such capacities at our request.
We 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 we consent 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 our securities pursuant to the
provisions of Section 16(b) of the Exchange Act 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, our best interests; (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 us 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,
<PAGE>
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 us and our directors and executive officers, may
be sufficiently broad to permit indemnification of our directors and executive
officers for liabilities arising under the Securities Act.
We maintain directors and officers liability insurance with a per
claim and annual aggregate coverage limit of $10,000,000.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit No. Description
- ----------- -----------
4.01* Our Amended and Restated Certificate of Incorporation,
incorporated by reference to Exhibit 3.01 to our
registration statement on Form S-1, File No. 333-27293,
dated July 2, 1997.
4.02* Certificate of Designations, incorporated by reference
to Exhibit 3.03 to our annual report on Form 10-K for
the fiscal year ended December 31, 1998
4.03* Our Bylaws, as amended and restated, incorporated by
reference to Exhibit 3.01 to our current report on Form
8-K filed with the Commission on September 4, 1998.
4.04* Rights Agreement, dated September 2, 1998, by and
between us and The Bank of New York, as Rights Agent,
incorporated by reference to Exhibit 4.01 to our
current report on Form 8-K dated September 4, 1998
4.05* Our 1997 Equity Incentive Plan, as amended,
incorporated by reference to Exhibit 4.06 to our
registration statement on Form S-8 filed with the
Commission on October 15, 1997 (File No. 333-37969).
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit
5.01)
23.02 Consent of KPMG LLP
24.01 Power of Attorney (included as part of the signature
page of this Registration Statement)
____________________
* 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:
<PAGE>
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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, 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.
(4) 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 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) 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 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.
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act, 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 March
8, 2000.
TSI INTERNATIONAL SOFTWARE LTD.
By: /s/ Constance F. Galley
-------------------------------
Constance F. Galley
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
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 as amended, 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 March 8, 2000
_______________________ Officer and Director
Constance F. Galley
Principal Financial and
Principal Accounting
Officer
/s/ IRA A. GERARD Vice President, Finance and March 8, 2000
_______________________ Administration, and Chief
Ira A. Gerard Financial Officer, Secretary
and Treasurer
Additional Directors
/s/ JAMES P. SCHADT Director March 8, 2000
_______________________
James P. Schadt
/s/ ERNEST E. KEET Director March 8, 2000
_______________________
Ernest E. Keet
<PAGE>
/s/ RICHARD LITTLE Director March 8, 2000
_______________________
Richard Little
/s/ DENNIS G. SISCO Director March 8, 2000
_______________________
Dennis G. Sisco
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Exhibit
Number Title
- ------- -----
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of KPMG LLP, Independent Auditors.
24.01 Power of Attorney (included as part of the signature page to this
Registration Statement).
<PAGE>
EXHIBIT 5.01
------------
March 8, 2000
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") filed by you with the Securities and Exchange
Commission (the "Commission") on or about March 8, 2000 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
2,500,000 shares of your Common Stock, $0.01 par value (the "Common Stock"),
subject to issuance by you under your 1997 Equity Incentive Plan (the "Plan").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-27293)
declared effective by the Commission on July 2, 1997, together with
the Exhibits filed as a part thereof (the "S-1 Registration
Statement");
(2) your registration statement on Form 8-A filed with the Commission on
June 6, 1997;
(3) the Registration Statement, together with the Exhibits filed as a part
thereof;
(4) the prospectus prepared in connection with the Registration Statement
(the "Prospectus");
(5) the Plan and related award grant and exercise agreement forms;
(6) your Amended and Restated Certificate of Incorporation and your
Amended and Restated Bylaws;
(7) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors that are contained in your minute
books that are in our possession;
(8) a Management Certificate addressed to us and dated of even date
herewith executed by you containing certain factual and other
representations.
We have also have confirmed the continued effectiveness of your
registration under the Securities Act of 1934, as amended, by telephone call to
the offices of the Commission and have confirmed your eligibility to use Form S-
8.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity and the completeness of all documents
submitted to us as originals, the conformity to originals and completeness of
all documents submitted to us as copies, the legal capacity of all natural
persons executing the same, the lack of any undisclosed termination,
modification, waiver or amendment to any document reviewed by us and the due
authorization, execution and delivery of all documents where due authorization,
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 obtained from public officials and
records referred to above. We have made no independent investigation or other
attempt to verify the accuracy of any of such information or to determine the
existence or non-existence of any other factual matters; however, we are not
-------
aware of any facts that would cause us to believe that the opinion expressed
herein is not accurate.
We are admitted to practice law in the State of California, and we express
no opinion herein with respect to the application or effect of the laws of any
jurisdiction other than the existing laws of the United States of America and
the State of California and (without reference to any case law or secondary
sources) the existing Delaware General Corporation Law.
In connection with our opinion expressed below, we have assumed that, at or
prior to the time of the delivery of any shares of Common Stock, the
Registration Statement will have been declared effective under the Securities
Act of 1933, as amended, that the registration will apply to such shares of
Common Stock and will not have been modified or rescinded or been made subject
to any Commission stop order and that there will not have occurred any change in
law affecting the validity or enforceability of such shares of Common Stock.
Based upon the foregoing, it is our opinion that the 2,500,000 shares of
Common Stock that may be issued and sold by the Company upon the exercise of
stock options granted or to be granted under the Plan, when issued, sold and
delivered in accordance with the Plan and in the manner and for the
consideration stated in the Registration Statement and the Prospectus, will be
validly 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 we assume no obligation to
update this opinion should circumstances change after the date hereof. This
opinion is intended solely for your use as an exhibit to the Registration
Statement for the purpose of the above sale of the Common Stock and is not to be
relied upon for any other purpose.
Very truly yours,
/s/ FENWICK & WEST LLP
<PAGE>
Exhibit 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to incorporation by reference in this Registration Statement on
Form S-8 of our reports dated February 3, 1999 relating to the financial
statements and related financial statement schedule, which appear in the TSI
International Software Ltd. Annual Report on Form 10-K for the year ended
December 31, 1998.
/s/ KPMG LLP
New York, New York
March 8, 2000
