<PAGE>
As filed with the Securities and Exchange Commission on October 7, 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
-----------------------
PERVASIVE SOFTWARE INC.
(Exact name of registrant as specified in its charter)
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<CAPTION>
<S> <C> <C>
DELAWARE 7372 74-2693793
(State or other jurisdiction (Primary Standard Industrial (IRS Employer
of incorporation or organization) Classification Code Number) Identification No.)
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8834 Capital of Texas Highway
Austin, Texas 78759
(Address of principal executive offices) (Zip Code)
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PERVASIVE SOFTWARE INC.
1997 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
------------------------
RON R. HARRIS
Chief Executive Officer
PERVASIVE SOFTWARE INC.
8834 Capital of Texas Highway
Austin, Texas 78759
(Name and address of agent for service)
(512) 794-1719
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) per Share(2) Price(2) Fee
---------- ---------- --------- ----- ---
<S> <C> <C> <C> <C>
1997 Stock Incentive Plan
- -------------------------
Options to purchase
Common Stock 3,428,611 N/A N/A N/A
Common Stock (par value $.001) 3,428,611 shares $11.375 $39,000,450.12 $11,818.31
-------- -------------- ----------
Employee Stock Purchase Plan
- ----------------------------
Common Stock (par value $.001) 500,000 shares $11.375 $ 5,687,500 $1,723.48
-------- ----------- ---------
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Stock Incentive Plan and
the Employee Stock Purchase Plan 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 Pervasive Software 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 prices per share of Common Stock of Pervasive Software Inc. as
reported on the Nasdaq National Market on October 2, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
Pervasive Software 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 prospectus filed with the SEC pursuant to Rule
424(b) of the Securities Act of 1933, as amended (the "1933 Act"),
in connection with the Registration Statement No. 333-32199 on
Form S-1 filed with the SEC on July 28, 1997, together with all
amendments thereto, in which there is set forth audited financial
statements for the Registrant's fiscal years ended June 30, 1995,
1996 and 1997; and
(b) The description of the Registrant's outstanding Common Stock
contained in the Registrant's Registration Statement No. 0-23043
on Form 8-A filed with the SEC on September 2, 1997 pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), including any amendment or report filed for the
purpose of updating such description.
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.
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 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 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.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
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Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-23043 on Form 8-A,
which is incorporated herein by reference pursuant to Item 3(b)
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.
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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 1997 Stock Incentive Plan and Employee
Stock Purchase Plan.
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.
II-2
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
theRegistrant 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 Austin, State of Texas on this 3rd day of
October, 1997.
PERVASIVE SOFTWARE INC.
By: /s/ Ron R. Harris
----------------------------
Ron R. Harris
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Pervasive Software Inc., a
Delaware corporation, do hereby constitute and appoint Ron R. Harris and James
R. Offerdahl, 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.
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Signature Title Date
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/s/ Ron R. Harris
- --------------------- President, Chief Executive Officer and October 3, 1997
Ron R. Harris Director
(Principal Executive Officer)
/s/ J. R. Offerdahl
- --------------------- Chief Financial Officer, October 3, 1997
James R. Offerdahl Vice President, Administration and
Secretary (Principal Financial and
Accounting Officer)
/s/ Nancy R. Woodward
- --------------------- Director October 3,1997
Nancy R. Woodward
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II-3
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Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ J. Aragona
- --------------------- Director October 3, 1997
Joseph C. Aragona
/s/ D. Boucher
- --------------------- Director October 3, 1997
David A. Boucher
/s/ David R. Bradford
- --------------------- Director October 3, 1997
David R. Bradford
/s/ S. H. Carter, Jr.
- --------------------- Director October 3, 1997
Shelby H. Carter, Jr.
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II-4
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
PERVASIVE SOFTWARE INC.
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EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Instruments Defining Rights of Stockholders. Reference is made
to Registrant's Registration Statement No. 0-23043 on Form 8-A,
which is incorporated herein by reference pursuant to Item 3(b)
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.
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<PAGE>
EXHIBIT 5
October 7, 1997
Pervasive Software Inc.
8834 Capital of Texas Highway
Austin, Texas 78759
Re: Pervasive Software Inc. Registration Statement for
Offering of 3,928,611 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) 3,428,611
shares of Common Stock under the 1997 Stock Incentive Plan, and (ii) 500,000
shares of Common Stock under the Employee Stock Purchase Plan. We advise you
that, in our opinion, when such shares have been issued and sold pursuant to the
applicable provisions of the 1997 Stock Incentive Plan and the Employee Stock
Purchase Plan 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
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the registration of 3,428,611 shares of Common Stock
under the 1997 Stock Incentive Plan and 500,000 shares of Common Stock under the
Employee Stock Purchase Plan of our report dated July 24, 1997, with respect to
the consolidated financial statements of Pervasive Software Inc. included in its
Registration Statement (Form S-1 No. 333-32199), filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Austin, Texas
October 2, 1997
