<PAGE>
As filed with the Securities and Exchange Commission on October 12, 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
--------------------
TIBCO SOFTWARE INC.
(Exact name of registrant as specified in its charter)
DELAWARE 77-0449727
- ----------------------- -------------------
(State of Incorporation) (I.R.S. Employer
Identification No.)
3165 Porter Drive
Palo Alto, CA 94304
(Address of Principal Executive Offices, including Zip Code)
----------------------------------------
1996 Stock Option Plan
1998 Director Option Plan
(Full title of the plans)
-----------------------------------------
Paul G. Hansen
Chief Financial Officer
3165 Porter Drive
Palo Alto, CA 94304
(650) 846-1000
(Name, address and telephone number of agent for service)
--------------------
Copies to:
Brian C. Erb, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304-1050
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to to be Offering Price Aggregate Registration
be Registered Registered/(1)/ Per Share Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value to be 10,137,905 $3.02(2) $33,616,473.10 $8,511.38
issued upon exercise of options granted
and outstanding under the 1996 Stock
Option Plan
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value to be 120,698 $33.75(3) $4,073,557.50 $1,132.45
issued upon exercise of options
available for grant under the 1996 Stock
Option Plan
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value to be 430,000 $5.15(4) $2,215,016.00 $615.77
issued upon exercise of options granted
and outstanding under the 1998 Director
Option Plan
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.001 par value to be 395,000 $33.75(5) $13,331,250 $3,706.09
issued upon exercise of options
available for grant under the 1998
Director Option Plan
- ------------------------------------------------------------------------------------------------------------------------
TOTAL 11,083,603 $ 50,236,296.66 $13,965.69
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options granted and outstanding, based
on the weighted average exercise price of the outstanding options as of
October 5, 1999, which average is $3.02.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options remaining available for grant,
based on the average price of the high and low price as reported by the
Nasdaq Stock Market on October 8, 1999, which average price is $33.75.
(4) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options granted and outstanding, based
on the weighted average exercise price of the outstanding options as of
October 5, 1999, which average is $5.15.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee, based on the average price of the high
and low price as reported by the Nasdaq Stock Market on October 8, 1999,
which average price is $33.75.
<PAGE>
TIBCO SOFTWARE INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed by TIBCO Software Inc.
(the "Registrant") with the Securities and Exchange Commission (the
"Commission"):
1. The Registrant's Quarterly Report on Form 10-Q for the quarter ending
August 27, 1999 filed pursuant to Section 13 of the Exchange Act.
2. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1 (File No. 333-78195)
which was declared effective by the Commission on July 13, 1999, filed
pursuant to Section 12 of 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) or 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 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.
The Registrant's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a company will not be personally liable for monetary damages
for breach of their fiduciary duties as directors, except for liability (i) for
any breach of their duty of loyalty to the Registrant or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or knowing violation of law, (iii) for unlawful payments or dividends or
unlawful stock repurchases or redemptions as provided Section 174 of Delaware
General Corporation Law or (iv) for transactions from which the director derived
an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
officers and directors and may indemnify its employees and other agents to the
fullest extent provided by Delaware law, including those circumstances where
indemnification would otherwise be discretionary under Delaware law. The
Registrant believes that indemnification under its Bylaws covers at least
negligence on the part of indemnified parties. The Registrant has entered into
agreements to indemnify its directors and officers in addition to the
indemnification provided for in the Registrant's Certificate of Incorporation
and Bylaws.
-2-
<PAGE>
The Registrant maintains directors and officers insurance providing
indemnification for certain of the Registrant's directors, officers, affiliates,
partners or employees for certain liabilities.
Delaware Law does not permit a corporation to eliminate a director's duty
of care, and the provisions of the Registrant's Certificate of Incorporation
have no effect on the availability of equitable remedies such as injunction or
rescission, based upon a director's breach of the duty of care. Insofar as
indemnification for liabilities arising under the Exchange Act may be permitted
to foregoing provisions and agreements, the Registrant has been informed that in
the opinion of the staff of the Commission such indemnification is against
public policy as expressed in the Exchange Act and is therefore unenforceable.
Item 7. Exemption from Registration
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
-------- ------------------------------
4.1* 1996 Stock Option Plan.
4.2* 1998 Director Option Plan.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained in signature page).
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1, as amended (No. 333-78195), which was declared effective
by the Commission on July 13, 1999.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(i) To file, during any period 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.
-3-
<PAGE>
(ii) That, for the purpose of determining any liability under the
Securities Act, each 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.
(iii) 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.
(b) The 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.
(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 law, the Registrant's Amended
and Restated Certificate of Incorporation, Bylaws, indemnification
agreements, 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 a 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, 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 of 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.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Palo Alto, State of California, on this 12th day of
October, 1999.
TIBCO SOFTWARE INC.
By: /s/ Paul G. Hansen
______________________________
Paul G. Hansen
Executive Vice President,
Finance and Chief Financial
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul G. Hansen as his attorney-in-fact,
with full power of substitution in each, for him in any and all capacities to
sign any amendments to this registration statement on Form S-8, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, hereby ratifying and confirming all that said attorney-in-fact,
or his substitutes, may 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
dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Vivek Ranadive President, Chief Executive Officer, Chairman October 12, 1999
- --------------------------- of the Board and Director (Principal
Vivek Ranadive Executive Officer)
/s/ Paul G. Hansen Executive Vice President, Finance October 12, 1999
- --------------------------- and Chief Financial Officer (Principal
Paul G. Hansen Financial and Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Douglas M. Atkin Director October 12, 1999
___________________________
Douglas M. Atkin
Director October __, 1999
- ---------------------------
Yogen K. Dalal
Director October __, 1999
___________________________
Edward R. Kozel
Director October __, 1999
___________________________
Donald J. Listwin
/s/ Larry W. Sonsini Director October 12, 1999
- ---------------------------
Larry W. Sonsini
Director October __, 1999
___________________________
John G. Taysom
/s/ Phillip E. White Director October 12, 1999
- ---------------------------
Phillip E. White
/s/ Philip K. Wood Director October 12, 1999
___________________________
Philip K. Wood
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1* 1996 Stock Option Plan.
4.2* 1998 Director Option Plan.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of PricewaterhouseCoopers LLP, independent
accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
(contained in Exhibit 5.1).
24.1 Power of Attorney (contained in signature page).
* Incorporated by reference to the Registrant's Registration Statement
on Form S-1, as amended (No. 333-78195), which was declared effective
by the Commission on July 13, 1999.
<PAGE>
EXHIBIT 5.1
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October 12, 1999
TIBCO Software Inc.
3165 Porter Drive
Palo Alto, CA 94304
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 October 12, 1999
(the "Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 11,083,603 shares of
Common Stock, par value $0.001 (the "Shares"), reserved for issuance pursuant to
the 1996 Stock Option Plan and the 1998 Director Option Plan (collectively, the
"Plans"). As your legal counsel, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares under the Plans.
It is our opinion that the Shares will be, when issued and sold in the
manner referred to in the Plans, 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 the use of our name wherever appearing in the
Registration Statement and any subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati P.C.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 23, 1999, except for the
subsequent events as discussed in Note 10, which is as of July 13, 1999,
relating to the financial statements, which appears in the Registration
Statement of TIBCO Software Inc. on Form S-1 (333-78195) dated July 13, 1999.
/s/ PricewaterhouseCoopers LLP
San Jose, California
October 11, 1999
