<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1997
Registration No. 333-
================================================================================
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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SEAGATE SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0397623
- ---------------------------- -----------------------
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
915 DISC DRIVE
SCOTTS VALLEY, CALIFORNIA 95066
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1996 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
ELLEN E. CHAMBERLAIN
SENIOR VICE PRESIDENT,
TREASURER
AND CHIEF FINANCIAL OFFICER
SEAGATE SOFTWARE, INC.
915 DISC DRIVE
SCOTTS VALLEY, CALIFORNIA 95066
(408) 439-6550
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------
Copies to:
JOHN T. SHERIDAN, ESQ. SUSAN WOLFE, ESQ.
WILSON SONSINI GOODRICH & ROSATI GENERAL COUNSEL AND SECRETARY
PROFESSIONAL CORPORATION SEAGATE SOFTWARE, INC.
650 PAGE MILL ROAD 915 DISC DRIVE
PALO ALTO, CA 94304 SCOTTS VALLEY, CALIFORNIA 95066
(650) 493-9300 (408) 438-6550
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE FEE
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 11,788,009 shares $1.24 $14,617,131 $4,312.05
==========================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1996 Stock Option Plan in the event of a stock dividend, reverse stock
split, split-up, recapitalization or similar event.
(2) This estimate is based on the book value of the Common Stock of Seagate
Software, Inc. on October 3, 1997 pursuant to Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of determining
the registration fee.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference the following documents and
information heretofore filed with the Securities and Exchange Commission (the
"Commission"):
ITEM 3(a).
. The Registrant's Registration Statement on Form 10 pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "Exchange Act") dated
October 3, 1997 and effective December 2, 1997 containing audited
financial statements for the fiscal year ended June 27, 1997
. The Registrant's Post-Effective Amendment No. 1 to the Registration
Statement on Form 10 filed with the Commission as of December 11, 1997
ITEM 3(b).
. The Registrant's Post-Effective Amendment No. 1 to the Registration
Statement on Form 10 dated December 11, 1997
ITEM 3(c).
. The description of the Registrant's Common Stock which is contained in
Item 11 of the Registrant's Registration Statement on Form 10 filed
pursuant to Section 12(g) of the Exchange Act as filed with the
Commission on October 3, 1997, as amended, and any further amendment or
report filed hereafter for the purpose of updating such description
All documents subsequently filed by the Registrant 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 offered 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 part hereof
from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is subject to Section 145 of the Delaware General Corporation
Law ("Section 145"). Section 145 permits indemnification of officers and
directors of the Company under certain conditions and subject to certain
limitations. Section 145 also provides that a corporation has the power to
maintain insurance on behalf of its officers and directors against any liability
asserted against such person and incurred by him or her in such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liability under the
provisions of Section 145. Article VI, Sections 6.1, 6.2 and 6.3, of 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 not prohibited by the Delaware General Corporation Law. For
purposes of this section, a "director" or "officer" of the Company includes any
person (i) who is or was a director or officer of the corporation, (ii) who is
or was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise, or
(iii) who was a director or officer of a corporation which was a predecessor
corporation of the Company or of another enterprise at the request of such
predecessor corporation. The rights to indemnity thereunder continue as to a
person who has ceased to be a director, officer, employee or agent and inure to
the benefit of the heirs, executors and administrators of the person. In
addition, expenses incurred by a director or executive officer in defending any
civil, criminal, administrative or investigative action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of the Company
(or was serving at the Company's request as a director or officer of another
corporation) shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Company as
authorized by the relevant section of the Delaware General Corporation Law.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation provides that, pursuant to
Delaware law, its directors shall not be personally liable for monetary damages
for beach of the directors' fiduciary duty as directors to the Company and its
stockholders. This provision in the Certificate of Incorporation does not
eliminate the directors' fiduciary duty, 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 beach of the director's duty of loyalty to the
Company for acts or omissions not in good faith or involving international
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 Section 174 of the
Delaware General Corporation Law. The provision also does not affect a
director's
II-2
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responsibilities under any other law, such as the federal securities
laws or state or federal environmental laws. The Company has entered into
indemnification agreements with each of its directors and executive officers.
Generally, the indemnification agreements attempt to provide the maximum
protection permitted by Delaware law as it may be amended from time to time and
to obtain directors' and officers' insurance if available on reasonable terms.
Moreover, the indemnification agreements provide for certain additional
indemnification. Under such additional indemnification provisions, however, an
individual will not receive indemnification for judgments, settlements or
expenses if he or she is found liable to the Company (except to the extent the
court determines he or she is fairly and reasonably entitled to indemnity for
expenses), for settlements not approved by the Company or for settlements and
expenses if the settlement is not approved by the court. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order to
receive an advance of expenses, the individual must submit to the Company copies
of invoices presented to him or her for such expenses. Also, the individual must
repay such advances upon a final judicial decision that he or she is not
entitled to indemnification.
At present, there is no pending litigation or proceeding involving a
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding which may result in a claim for such indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Document
------- --------
4.1 /*/ 1996 Stock Option Plan and forms of Notice of Stock Option
Grant and Stock Option Agreement thereunder.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see pages II-5 and II-6).
- -------------------
/*/ Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10 (Commission File No. 0-23169) that was
effective on December 2, 1997.
II-3
<PAGE>
ITEM 9. UNDERTAKINGS.
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
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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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 post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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 therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Registrant
pursuant to the Delaware General Corporation Law, the Certificate of
Incorporation of the Registrant, the Bylaws of the Registrant and
Indemnification Agreements entered into between Registrant and its officers and
directors, or otherwise, 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 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 hereunder, 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Seagate Software, Inc., 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 Scotts Valley, State of
California, on this 23rd day of December, 1997.
SEAGATE SOFTWARE, INC.
By: /s/ Terence R. Cunningham
--------------------------
Terence R. Cunningham
President and Chief
Operating Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Terence R.
Cunningham and Ellen E. Chamberlain his or her attorneys-in-fact, each with the
power of substitution, for them in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 (including post-effective
amendments), and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
or her substitute or substitutes, may do or cause to be done by virtue hereof.
II-5
<PAGE>
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
-------------------- ---------------------- ----------------
/s/ Terence R. Cunningham President and Chief December 23, 1997
- ---------------------------- Operating Officer
(Terence R. Cunningham) (Principal Executive Officer)
/s/ Ellen E. Chamberlain Senior Vice President, December 23, 1997
- ---------------------------- Treasurer and Chief Financial
(Ellen E. Chamberlain) Officer (Principal Financial
and Accounting Officer)
/s/ Stephen J. Luczo Chairman of the Board of December 23, 1997
- ---------------------------- Directors
(Stephen J. Luczo)
/s/ Gary B. Filler Director December 23, 1997
- ----------------------------
(Gary B. Filler)
/s/ Lawrence Perlman Director December 23, 1997
- ----------------------------
(Lawrence Perlman)
/s/ Alan F. Shugart Director December 23, 1997
- ----------------------------
(Alan F. Shugart)
Director December , 1997
- ----------------------------
(Donald L. Waite)
II-6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ------- ---------------------------------------------------------------------------- ------------
<S> <C> <C>
4.1/*/ 1996 Stock Option Plan and forms of Notice of Stock Option Grant and Stock --
Option Agreement thereunder.................................................
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation....... 8
23.1 Consent of Ernst & Young LLP, Independent Auditors.......................... 9
23.2 Consent of Counsel (contained in Exhibit 5.1)............................... --
24.1 Power of Attorney (see pages II-5 and II-6)................................. --
</TABLE>
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/*/ Incorporated by reference to the Exhibits filed with the Registrant's
Registration Statement on Form 10 (Commission File No. 0-23169) that was
effective on December 2, 1997.
II-7
<PAGE>
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 650-493-9300 FACSIMILE 650-493-6811
December 23, 1997
Seagate Software, Inc.
915 Disc Drive
Scotts Valley, California 95066
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about December 19, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 11,788,009 shares of
your Common Stock under the 1996 Stock Option Plan. Such shares of Common
Stock are referred to herein as the "Shares," and such plan and compensation
agreements are referred to herein as the "Plan." As your counsel in connection
with this transaction, we have examined the proceedings taken and are familiar
with the proceedings proposed to be taken by you in connection with the
issuance and sale of the Shares pursuant to the Plan.
It is our opinion that, when issued and sold in the manner described in the
Plan and pursuant to the agreements which accompany each grant under the Plan,
the Shares will be legally and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
- --------------------------------------------------
We consent to the incorporation by reference in this Registration Statement
(Form S-8) and the related prospectus pertaining to the 1996 Stock Option Plan
of Seagate Software, Inc. of our report dated September 17, 1997, except for
the first paragraph of the Legal Proceedings Note as to which the date is
November 10, 1997, with respect to the consolidated financial statements of
Seagate Software, Inc. included in its Registration Statement on Form 10
(Amendment No. 1) for the year ended June 27, 1997, and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
- ------------------------------
San Jose, California
December 19, 1997
