<PAGE> 1
As filed with the Securities and Exchange Commission on June 26, 2000
Registration No. 333-
--------------------------------------------------------------------------------
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 the Registrant as specified in its charter)
DELAWARE 77-0408319
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
181 CONSTITUTION DRIVE
MENLO PARK, CALIFORNIA 94025
(Address of principal executive offices)
OPTIONS AND PURCHASE RIGHTS ISSUED UNDER THE APERIO, INC. 1998
INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN AND ASSUMED BY
THE REGISTRANT IN CONNECTION WITH ITS ACQUISITION OF APERIO.
STOCK OPTION AGREEMENTS WITH DAVID MILAM AND WILLIAM WOLFE
(Full title of the plans)
RUSTY THOMAS
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
181 CONSTITUTION DRIVE
MENLO PARK, CALIFORNIA 94025
(650) 614-8300
(Name, address and telephone number of agent for service)
Copies to:
DAVID K. MICHAELS, ESQ.
THOMAS J. HALL, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM
TITLE OF SHARES TO BE AGGREGATE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
====================================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$0.001 par value per share 118,666(1) $0.348360(3) $ 41,339(4) $ 11(4)
====================================================================================================
Common Stock,
$0.001 par value per share 600,000(2) $ 14.5156(3) $8,709,360(4) $2,300(4)
====================================================================================================
</TABLE>
(1) Represents shares reserved for issuance upon the exercise of options
granted under the Aperio 1998 Incentive and Nonqualified Stock Option Plan.
<PAGE> 2
(2) Represents shares reserved for issuance pursuant to the exercise of options
granted pursuant to stock option agreements with David Milam and William
Wolfe.
(3) Weighted average per share exercise price for these outstanding options.
(4) Calculated based on the weighted average per share exercise price, pursuant
to Rule 457(h)(1) under the Securities Act of 1933, as amended (the
"Securities Act").
<PAGE> 3
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 into this registration statement
by reference:
(a) our most recent annual report on Form 10-K filed with the
Commission;
(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 the end of the fiscal year covered by the document referred
to in (a) above; 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, 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 to be
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.
Certain partners and investment partnerships comprised of certain
partners of Fenwick & West LLP, our counsel, own 64,758 shares of our common
stock.
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, indemnity to directors
and executive 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 Delaware General Corporation Law, our certificate of
incorporation, as amended, 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:
- for any breach of the director's duty of loyalty to us or our
stockholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law (regarding
unlawful dividends and stock purchases); or
- for any transaction from which the director derived an improper
personal benefit.
II-1
<PAGE> 4
As permitted by the Delaware General Corporation Law, our bylaws provide
that:
- we are required to indemnify our directors and executive officers to
the fullest extent permitted by the Delaware General Corporation Law,
subject to limited exceptions;
- we may indemnify our other employees and agents as set forth in the
Delaware General Corporation Law;
- we are required to advance expenses, as incurred, to our directors
and officers in connection with a legal proceeding to the fullest
extent permitted by the Delaware General Corporation Law, subject to
limited exceptions; and
- the rights conferred in the bylaws are not exclusive.
We entered into indemnity agreements with each of our current directors
and executive officers to give such directors and executive officers additional
contractual assurances regarding the scope of the indemnification set forth in
our certificate of incorporation and to provide additional procedural
protections. The indemnification provisions in our certificate of incorporation,
bylaws and the indemnity agreements may be sufficiently broad to permit
indemnification of our directors and executive officers for liabilities arising
under the Securities Act.
We entered into underwriting agreements with investment banks and
certain of our stockholders in connection with our initial public offering and
secondary public offering pursuant to which the underwriters agreed to indemnify
us, our directors and executive officers against certain liabilities, including
liabilities arising under the Securities Act. Likewise, pursuant to our Fourth
Amended and Restated Investors' Rights Agreement, stockholders exercising rights
pursuant to this agreement have agreed to indemnify us, our directors and our
officers who sign the registration statement against certain liabilities
including liabilities arising under the Securities Act.
We have also obtained directors' and officers' liability insurance that
will include coverage for securities matters. At present, there is no pending
litigation or proceeding involving any of our directors, officers or employees
regarding which indemnification is sought, nor are we aware of any threatened
litigation that may result in claims for indemnification.
See also the undertakings set out in response to Item 9.
Reference is made to the following documents regarding relevant
indemnification provisions described above and elsewhere herein:
DOCUMENT
Certificate of Incorporation and amendments (see Exhibits 4.01-4.04).
Bylaws (see Exhibit 4.05).
Form of Indemnity Agreement (incorporated by reference to Exhibit 10.01 to our
registration statement on Form S-1 (File No. 333-82251) filed with the
Commission on July 2, 1999, as subsequently amended).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE> 5
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
INCORPORATED BY REFERENCE
EXHIBIT ------------------------- FILED
NUMBER EXHIBIT DESCRIPTION FORM FILE NO. EXHIBIT FILING DATE HEREWITH
------ ------------------- ---- -------- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
4.01 Certificate of Incorporation, filed with the S-1 333-82251 3.01 07/02/99
Delaware Secretary of State on June 28, 1999.
4.02 Certificate of Amendment of Certificate of S-1 333-82251 3.04 09/20/99
Incorporation, filed with the Delaware
Secretary of State on July 30, 1999.
4.03 Certificate of Designation, filed with the S-1 333-82251 3.03 09/20/99
Delaware Secretary of State on September 10, 1999.
4.04 Certificate of Retirement, filed with the S-1 333-95125 3.05 01/21/00
Delaware Secretary of State on November 3, 1999.
4.05 Bylaws, as adopted on July 2, 1999. S-8 333-38480 4.05 06/02/00
4.06 Form of specimen certificate for our common S-1 333-82251 4.01 08/12/99
stock.
4.07 Fourth Amended and Restated Investors' Rights S-1 333-82251 4.02 07/02/99
Agreement, dated June 30, 1999.
4.08 Series E Rights Agreement, dated June 30, 1999. S-1 333-82251 4.03 08/12/99
4.09 Aperio, Inc., 1998 Incentive and Nonqualified X
Stock Option Plan and related forms of
agreements.
4.10 Broadbase Software, Inc. Non-Plan Stock Option X
Agreement with David Milam, dated April 24, 2000.
4.11 Broadbase Software, Inc. Non-Plan Stock Option X
Agreement with William Wolfe, dated April 24, 2000.
5.01 Opinion of Fenwick & West LLP regarding the X
legality of the securities being registered.
23.01 Consent of Fenwick & West LLP (included in X
Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent X
Auditors.
24.01 Power of Attorney (see signature page X
following Item 9).
</TABLE>
II-3
<PAGE> 6
ITEM 9. UNDERTAKINGS.
We hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(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 thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(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 (a) and (b) do not apply if the information
required to be included in a post-effective amendment by (a) and
(b) is contained in periodic reports filed with or furnished to the
Commission by us 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.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to
Section 13(a) or 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 in the registration statement, and the offering
of the securities at that time shall be deemed to be the initial
bona fide offering of those securities.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have 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 us of expenses incurred or paid by one or more of our directors,
officers or controlling persons 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, we will, unless in the opinion
of our 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> 7
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 26th day of
June, 2000.
BROADBASE SOFTWARE, INC.
By: /s/ Chuck Bay
-------------------------------------
Chuck Bay
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature
appears below and on the next page constitutes and appoints Chuck Bay, Rusty
Thomas and Eric Willgohs, 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 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 their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
Chief Executive Officer,
/s/ CHUCK BAY President and Director June 26, 2000
-----------------------------
Chuck Bay
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
Executive Vice President and
/s/ RUSTY THOMAS Chief Financial Officer June 26, 2000
-----------------------------
Rusty Thomas
</TABLE>
II-5
<PAGE> 8
<TABLE>
<S> <C> <C>
ADDITIONAL DIRECTORS:
Chairman of the Board of
----------------------------- Directors
Mark Kremer
/s/ KEVIN HARVEY Director June 26, 2000
-----------------------------
Kevin Harvey
----------------------------- Director
Paul Levy
/s/ NANCY SCHOENDORF Director June 26, 2000
-----------------------------
Nancy Schoendorf
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
INCORPORATED BY REFERENCE
EXHIBIT ------------------------- FILED
NUMBER EXHIBIT DESCRIPTION FORM FILE NO. EXHIBIT FILING DATE HEREWITH
------ ------------------- ---- -------- ------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
4.01 Certificate of Incorporation, filed with the S-1 333-82251 3.01 07/02/99
Delaware Secretary of State on June 28, 1999.
4.02 Certificate of Amendment of Certificate of S-1 333-82251 3.04 09/20/99
Incorporation, filed with the Delaware
Secretary of State on July 30, 1999.
4.03 Certificate of Designation, filed with the S-1 333-82251 3.03 09/20/99
Delaware Secretary of State on September 10, 1999.
4.04 Certificate of Retirement, filed with the S-1 333-95125 3.05 01/21/00
Delaware Secretary of State on November 3, 1999.
4.05 Bylaws, as adopted on July 2, 1999. S-8 333-38480 4.05 06/02/00
4.06 Form of specimen certificate for our common stock. S-1 333-82251 4.01 08/12/99
4.07 Fourth Amended and Restated Investors' Rights S-1 333-82251 4.02 07/02/99
Agreement, dated June 30, 1999.
4.08 Series E Rights Agreement, dated June 30, 1999. S-1 333-82251 4.03 08/12/99
4.09 Aperio, Inc., 1998 Incentive and Nonqualified X
Stock Option Plan and related forms of
agreements.
4.10 Broadbase Software, Inc. Non-Plan Stock Option X
Agreement with David Milam, dated April 24, 2000.
4.11 Broadbase Software, Inc. Non-Plan Stock Option X
Agreement with William Wolfe, dated April 24, 2000.
5.01 Opinion of Fenwick & West LLP regarding the X
legality of the securities being registered.
23.01 Consent of Fenwick & West LLP (included in X
Exhibit 5.01).
23.02 Consent of Ernst & Young LLP, Independent X
Auditors.
24.01 Power of Attorney (see signature page X
following Item 9).
</TABLE>
1
