<PAGE>
As filed with the Securities and Exchange Commission on February 10, 2000
Registration No. 333-_________
================================================================================
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
(Full title of the plan)
_________________________________________
Paul 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
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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 2,569,749 $140.70 (2) $361,563,685 $95,453
issued upon exercise of options
granted and outstanding under the
1996 Stock Option Plan
Common Stock, $0.001 par value, to be 3,366,939 $173.75 (3) $585,005,652 $154,441
issued upon exercise of options
available for grant under the
1996 Stock Option Plan
- ----------------------------------------------------------------------------------------------------------------------------
TOTAL $946,569,337 $249,894
- ----------------------------------------------------------------------------------------------------------------------------
</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 calculating
the registration fee of options granted and outstanding, based on the
weighted average exercise price of the outstanding options as of February
10, 2000, which average is $140.70.
(3) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee of options available for grant, based on
the average price of the high and low price as reported by the Nasdaq Stock
Market on February 4, 2000, which average price is $173.75.
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<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 Current Report on Form 8-K filed on November 19, 1999.
2. The Registrant's Current Report on Form 8-K/A filed on December 29, 1999.
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ending
August 27, 1999 filed on October 12, 1999.
4. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on July 1, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 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.
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<PAGE>
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 Bylaws authorize the use of
indemnification agreements and the Registrant has entered into such agreements
with each of its directors and officers.
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.
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 on signature page).
_____________
*Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-78195), declared effective by the Commission on July 13,
1999.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
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<PAGE>
(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.
(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.
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<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 10th day of February, 2000.
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, February 10, 2000
________________________________ Chairman of the Board and Director
Vivek Ranadive (Principal Executive Officer)
/s/ Paul G. Hansen Executive Vice President, Finance, February 10, 2000
_________________________________ and Chief Financial Officer
Paul G. Hansen (Principal Financial Officer)
/s/ Ginger M. Kelly Corporate Controller and Chief February 10, 2000
_________________________________ Accounting Officer (Principal
Ginger M. Kelly Accounting Officer)
/s/ Douglas M. Atkin Director February 10, 2000
_________________________________
Douglas M. Atkin
Director
_________________________________
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Yogen K. Dalal
/s/ Edward R. Kozel Director February 10, 2000
_________________________________
Edward R. Kozel
/s/ Donald J. Listwin Director February 10, 2000
_________________________________
Donald J. Listwin
/s/ Larry W. Sonsini Director February 10, 2000
_________________________________
Larry W. Sonsini
/s/ John G. Taysom Director February 10, 2000
_________________________________
John G. Taysom
/s/ Phillip E. White Director February 10, 2000
_________________________________
Phillip E. White
/s/ Philip K. Wood Director February 10, 2000
_________________________________
Philip K. Wood
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
Number
-------
4.1* 1996 Stock 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 on signature page).
_______________
*Incorporated by reference to the Registrant's Registration Statement on Form
S-1 (File No. 333-78195), declared effective by the Commission on July 13, 1999.
<PAGE>
EXHIBIT 5.1
-----------
February 10, 2000
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 February 10, 2000 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 5,936,688 shares of
Common Stock, par value $0.001 (the "Shares"), reserved for issuance pursuant to
the 1996 Stock Option Plan (the "Plan"). 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 Plan.
It is our opinion that the Shares will be, when issued and sold in the
manner referred to in the Plan, 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 the 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. Form S-1 (333-78195) dated July 13, 1999.
/s/ PricewaterhouseCoopers LLP
San Jose, California
February 9, 2000
