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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 6, 2000
REGISTRATION NO. 333-_________
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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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SABA SOFTWARE, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-3267638
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2400 BRIDGE PARKWAY
REDWOOD SHORES, CALIFORNIA 94065
(Address of Principal Executive Offices)(ZIP Code)
SABA SOFTWARE, INC. 2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of Plans)
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TERRY CARLITZ
CHIEF FINANCIAL OFFICER
SABA SOFTWARE, INC.
2400 BRIDGE PARKWAY
REDWOOD SHORES, CALIFORNIA 94065
(650) 696-3840
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copy to:
CORI M. ALLEN, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CA 94304-1018
(650) 813-5600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock,$0.001 par
value................... 2,000,000 $14.00 $28,000,000 $7,392
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</TABLE>
(1) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "Securities Act"). The price of
$14.00 per share represents the estimated maximum initial public offering
price of the corporation's Common Stock.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described
herein.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I of
Form S-8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Securities and
Exchange Commission Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Saba Software, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
1. The Registrant's Prospectus filed pursuant to Rule 424(b) of the
Securities Act and included in the Registration Statement on Form S-1 (the
"Registration Statement") as declared effective on April 6, 2000 (No.
333-95761), which includes audited financial statements for the Registrant's
latest fiscal year.
2. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission on
April 5, 2000.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 (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.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporate Law of the State of Delaware,
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 Amended and Restated Bylaws also provide for
mandatory indemnification of its directors and executive officers, and
permissive indemnification of its employees and agents, to the fullest extent
permissible under Delaware law.
The Registrant's Amended and Restated Certificate of Incorporation
provides that the liability of its directors for monetary damages shall be
eliminated to the fullest extent permissible under Delaware law. Pursuant to
Delaware law, this includes 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 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 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 also does not
affect a director's responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
The Registrant has entered into agreements with its directors and its
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
maybe 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 such person's
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
The Registrant has obtained a policy of directors' and officers'
liability insurance that insures its directors and officers against the cost of
defense, settlement or payment of a judgment under certain circumstances.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation of the Registrant (incorporated herein
by reference to Exhibit 3.1 to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-95761), as originally filed with the Commission on January 31,
2000 and as subsequently amended (the "Registration Statement"))
4.2 Form of Amended and Restated Certificate of Incorporation of the
Registrant to be filed effective as of the closing of the offering made pursuant
to the Registration Statement (incorporated by reference to Exhibit 3.2 to the
Registration Statement)
4.3 Bylaws of the Registrant (incorporated by reference to Exhibit 3.3
to the Registration Statement)
4.4 Form of Amended and Restated Bylaws of the Registrant to be
effective as of the closing of the offering made pursuant to the Registration
Statement (incorporated by reference to Exhibit 3.4 to the Registration
Statement
4.5 Third Amended and Restated Investors' Rights Agreement (incorporated
by reference to Exhibit 10.5 to the Registration Statement)
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see Signature Page)
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 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;
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(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 the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1) (ii) do 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 Exchange Act
of 1934 that are incorporated by reference in this 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 bring registered which remain unsold at
the termination of the offering.
(b) 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 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 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
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 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 the
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, the Registrant, Saba
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 Redwood Shores, State of California, on April 6,
2000.
Saba Software, Inc.
By: /s/ Bobby Yazdani
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Bobby Yazdani
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each
of Bobby Yazdani, Terry Carlitz and Peter Williams as his or her true and lawful
attorneys-in-fact, each with the power of substitution, for him or her in any
and all capacities, to sign any amendment 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 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 or she might or could do in person, hereby
ratifying and confirming the said attorneys-in-fact or his or her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
President,
/s/ Bobby Yazdani Chief Executive Officer and Chairman of the April 6, 2000
- ---------------------------- Board (Principal Executive Officer)
Bobby Yazdani
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Terry Carlitz Chief Financial Officer and Director April 6, 2000
- ---------------------------- (Principal Financial and Accounting Officer)
Terry Carlitz
Director April 6, 2000
- ----------------------------
Douglas Allred
/s/ Robert Cohn Director April 6, 2000
- ----------------------------
Robert Cohn
/s/ Joseph Costello Director April 6, 2000
- ----------------------------
Joseph Costello
/s/ Joe Kiani Director April 6, 2000
- ----------------------------
Joe Kiani
/s/ Michael Moritz Director April 6, 2000
- ----------------------------
Michael Moritz
</TABLE>
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DOCUMENT
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<S> <C>
4.1 Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's
Registration Statement)
4.2 Form of Amended and Restated Certificate of Incorporation of the
Registrant to be filed effective as of the closing of the
offering made pursuant to the Registration Statement
(incorporated by reference to Exhibit 3.2 to the Registration
Statement)
4.3 Bylaws of the Registrant (incorporated by reference to Exhibit
3.3 to the Registration Statement)
4.4 Form of Amended and Restated Bylaws of the Registrant to be
effective as of the closing of the offering made pursuant to the
Registration Statement (incorporated by reference to Exhibit 3.4
to the Registration Statement
4.5 Third Amended and Restated Investors' Rights Agreement
(incorporated by reference to Exhibit 10.5 to the Registration
Statement)
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Morrison & Foerster LLP (contained in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see Signature Page)
</TABLE>
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EXHIBIT 5.1
April 6, 2000
Saba Software, Inc.
2400 Bridge Parkway
Redwood Shores, CA 94065
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Saba Software, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission on April 6, 2000 (the "Registration Statement"),
relating to the registration under the Securities Act of 1933, as amended, of
2,000,000 shares of the Company's Common Stock, $0.001 par value (the "Shares").
The Shares are reserved for issuance pursuant to the Company's 2000 Employee
Stock Purchase Plan. As counsel to the Company, we have examined the proceedings
taken by the Company in connection with the registration of the Shares.
It is our opinion that the Shares, when issued and sold in the manner
described in the Registration Statement and the related Prospectus, will be
legally and 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 in the Registration
Statement and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 2000 Employee Stock Purchase Plan of Saba
Software, Inc. of our report dated December 16, 1999, except for Note 12, as to
which the date is January 28, 2000 with respect to the consolidated financial
statements of Saba Software, Inc. included in its Registration Statement on Form
S-1 (No. 333-95761) and filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Walnut Creek, California
April 5, 2000
