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As filed with the Securities and Exchange Commission on September 24, 1999
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
BROADBASE SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0417081
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
172 CONSTITUTION DRIVE
MENLO PARK, CA 94025
(Address of Principal Executive Offices, including Zip Code)
1996 EQUITY INCENTIVE PLAN
1999 EQUITY INCENTIVE PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
CHUCK BAY
CHIEF FINANCIAL OFFICER, GENERAL COUNSEL, EXECUTIVE VICE PRESIDENT
OF OPERATIONS AND CORPORATE SECRETARY
BROADBASE SOFTWARE, INC.
172 CONSTITUTION DRIVE
MENLO PARK, CA 94025
(650) 614-8300
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
Gordon K. Davidson, Esq.
Eileen Duffy Robinett, Esq.
David K. Michaels, Esq.
Wendy Lun, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, CA 94306
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED PROPOSED MAXIMUM AMOUNT OF
TO BE MAXIMUM AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED OFFERING PRICE OFFERING PRICE FEE
REGISTERED PER SHARE
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value 4,085,623(1) $14.00(2) $57,198,722(2) $15,901.24
Common Stock, $0.001 par value 2,381,506(3) $ 1.56(4) $ 3,715,149 $ 1,032.81
- ---------------------------------------------------------------------------------------------------
TOTAL 6,467,129 $16,934.05
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(1) Shares available for grant as of September 21, 1999 under the 1999 Equity
Incentive Plan and available for issuance under the 1999 Employee Stock
Purchase Plan.
(2) Estimated as of September 21, 1999 pursuant to Rule 457(c) solely for the
purpose of calculating the registration fee.
(3) Shares subject to outstanding options as of September 21, 1999 under the
1996 Equity Incentive Plan.
(4) Weighed average exercise price for shares subject to outstanding options
under the 1996 Equity Incentive Plan pursuant to Rule 457(b)(1).
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BROADBASE SOFTWARE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act") in
connection with its Registration Statement on Form S-1 (File No.
333-82251), which contains audited financial statements of the
Registrant for the years ended December 31, 1997 and 1998.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), including any amendment or report filed 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Partners at Fenwick & West LLP own an aggregate of 32,379 shares of
Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
Section 145 of the Delaware General Corporation Law ("DGCL") authorizes
a court to award, or a corporation's board of directors to grant, indemnity 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 Securities Act.
As permitted by the DGCL, 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, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of the DGCL (regarding unlawful dividends and stock purchases) or
(iv) for any transaction from which the director derived an improper personal
benefit.
As permitted by the DGCL, the Registrant's Bylaws provide that (i) the
Registrant is required to indemnify its directors and officers to the fullest
extent permitted by the DGCL, subject to certain very limited exceptions, (ii)
the Registrant is required to advance expenses, as incurred, to its directors
and officers in connection with a legal proceeding to the fullest extent
permitted by the DGCL, subject to certain very limited exceptions, (iii) the
rights conferred in the Bylaws are not exclusive, (iv) the Registrant may
indemnify its other officers, employees and agents as set forth in the DGCL, and
(v) the Registrant is authorized to enter into indemnification arrangements with
its directors, officers, employees and agents.
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The Registrant has entered into Indemnity Agreements with each of its
current directors and officers to give such directors and officers additional
contractual assurances regarding the scope of the indemnification set forth in
the Registrant's Certificate of Incorporation and Bylaws and to provide
additional procedural protections. At present, there is no pending litigation or
proceeding involving a director, officer or employee of the Registrant regarding
which indemnification is sought, nor is the Registrant aware of any threatened
litigation that may result in claims for indemnification.
The Registrant, with approval by the Registrant's Board of Directors,
expects to obtain directors' and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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4.01 Registrant's Certificate of Incorporation (incorporated herein
by reference to Exhibit 3.01 of Registrant's Registration
Statement on Form S-1, File No. 333-82251, originally filed with
the Commission on July 2, 1999, as subsequently amended (the
"Form S-1")).
4.02 Registrant's Bylaws (incorporated by reference to Exhibit 3.02
of the Form S-1).
4.03 Registrant's Certificate of Designation of Preferred Stock
(incorporated herein by reference to Exhibit 3.03 of the Form
S-1).
4.04 Registrant's 1996 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form
S-1).
4.05 Registrant's 1999 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form
S-1).
4.06 Registrant's 1999 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.04 of
the Form S-1).
4.07 Amended and Restated Investors' Rights Agreement, dated June 30,
1999, between Registrant and certain stockholders named therein
(incorporated herein by reference to Exhibit 4.02 of the Form
S-1).
4.08 Series E Rights Agreement, dated June 30, 1999, between
Registrant and certain stockholders named therein (incorporated
herein by reference to Exhibit 4.03 of the Form S-1).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, independent auditors.
24.01 Power of Attorney (see page 5).
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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:
As authorized by the Registrant's Bylaws, the Registrant, with approval
by the Board of Directors, has obtained directors and officers liability
insurance with an annual aggregate coverage limit of $15 million.
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(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; and
(iii) 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)(i) and (1)(ii) above 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 Exchange Act 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.
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 the
Registrant pursuant to the provisions discussed in Item 6 hereof, 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 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 hereby, 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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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Mark Kremer and Chuck Bay, and each of
them, 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 on Form S-8, and to file the same with all
exhibits thereto and all documents in connection therewith, with the Securities
and Exchange Commission, granting unto 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 and about the premises, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or his or her or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 Menlo Park, State of California, on this 21st day of
September, 1999.
Broadbase Software, Inc.
By: /s/ CHUCK BAY
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Chuck Bay, Chief Financial Officer,
General Counsel, Executive Vice
President of Operations and Corporate
Secretary
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.
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Signature Title Date
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PRINCIPAL EXECUTIVE OFFICER:
/s/ MARK KREMER Chairman of the Board of September 21, 1999
- ----------------------------- Directors, President and Chief
Mark Kremer Executive Officer
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING
OFFICER:
/s/ CHUCK BAY Chief Financial Officer,
- ----------------------------- General Counsel, Executive Vice September 21, 1999
Chuck Bay President of Operations and
Corporate Secretary
ADDITIONAL DIRECTORS
/s/ PAUL LEVY Director September 21, 1999
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Paul Levy
/s/ KEVIN HARVEY Director September 21, 1999
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Kevin Harvey
/s/ NANCY SCHOENDORF Director September 21, 1999
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Nancy Schoendorf
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EXHIBIT 5.01
September 22, 1999
Broadbase Software, Inc.
172 Constitution Drive
Menlo Park, CA 94025
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 September 24, 1999 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 6,467,129 shares of your Common Stock (the "Stock") subject
to issuance by you upon the exercise of (a) stock options granted by you under
your 1996 Equity Incentive Plan, which plan has been terminated and under which
no further options will be granted (the "1996 Plan"), (b) stock options to be
granted by you under your 1999 Equity Incentive Plan (the "Equity Incentive
Plan"), or (c) purchase rights granted or to be granted under your 1999 Employee
Stock Purchase Plan (the "Purchase Plan"). (The plans referred to in clauses (a)
through (c) above are collectively referred to in this letter as the "Plans").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form S-1 (File Number 333-82251)
filed with the Commission on July 2, 1999, as subsequently
amended, together with the Exhibits filed as a part thereof,
including without limitation, each of the Plans and related
stock option grant and exercise agreements;
(2) your registration statement on Form 8-A (File Number 000-26789)
filed with the Commission on July 22, 1999;
(3) the Registration Statement, together with the Exhibits filed as
a part thereof;
(4) the Prospectuses prepared in connection with the Registration
Statement;
(5) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and the minute books of your predecessor, BroadBase
Information Systems, Inc., a California corporation ("BroadBase
California"), that are in our possession;
(6) the stock records for both you and Broadbase California that you
have provided to us (consisting of a list of stockholders and a
list of option and warrant holders respecting your capital stock
and of any rights to purchase capital stock that was prepared by
you); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by you containing certain factual and other
representations.
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Broadbase Software, Inc.
September 22, 1999
Page 2
We have also confirmed the continued effectiveness of your registration
under the Securities Exchange 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 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 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 case law or secondary
sources) the existing Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that the 6,467,129 shares of
Stock that may be issued and sold by you upon the exercise of (a) stock options
granted or to be granted under the Equity Incentive Plan, (b) stock options
granted under the 1996 Plan, and (c) purchase rights granted or to be granted
under the Purchase Plan, when issued and sold in accordance with the applicable
Plan and stock option or purchase agreements to be entered into thereunder, and
in the manner referred to in the relevant Prospectus associated with the
Registration Statement, 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.
Very truly yours,
FENWICK & WEST LLP
By: /s/ FENWICK & WEST LLP
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EXHIBIT 23.02
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Equity Incentive Plan, the 1999 Equity
Incentive Plan, and the 1999 Employee Stock Purchase Plan of Broadbase Software,
Inc. of our report dated March 5, 1999, with respect to the consolidated
financial statements of Broadbase Software, Inc. included in its Registration
Statement (Form S-1 No. 333-82251) as amended on September 21, 1999, and the
related Prospectus filed with the Securities and Exchange Commission pursuant to
Rule 424(b) under the Securities Act of 1933.
Our audits also included the financial statement schedule of Broadbase
Software, Inc. listed in Item 16(b) to the Registration Statement (Form S-1).
This schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion based on our audits. In our opinion, the
financial statement schedule referred to above, when considered in relation to
the basic financial statements taken as a whole, presents fairly in all material
respects the information set forth therein.
/s/ Ernst & Young LLP
San Jose, California
September 22, 1999
