<PAGE>
As filed with the Securities and Exchange Commission on December 22, 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 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.
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
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 9,744,123 $36.47 (2) $356,450,048.16 $105,152.76
issued upon exercise of options
availible for grant under the 1996
Stock Option Plan
--------------------------------------------------------------------------------------------------------------------------------
TOTAL 9,744,123
--------------------------------------------------------------------------------------------------------------------------------
</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 shares reserved for future issuance
under the Registrant's 1996 Stock Option Plan, based on the average of the
bid and asked price of the Registrant's Common Stock on December 22, 2000
as reported on the Nasdaq National Market.
<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 Annual Report on Form 10-K for the year ended
November 30, 1999, filed on February 25, 2000.
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ending
February 29, 2000, May 31, 2000 and August 31, 2000, filed on March
17, 2000, July 17, 2000 and October 13, 2000, respectively.
3. The Registrant's Current Report on Form 8-K filed on September 19, 2000.
4. The Registrant's Current Report on Form 8-K/A filed on November 17, 2000.
5. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form S-1 (File No. 333-31358),
which was declared effective by the Commission on March 21, 2000,
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 or 15(d) of the Exchange Act 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.
<PAGE>
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 under
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 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 Registrants 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
------- -----------
3.1* Certificate of Incorporation of Registrant
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 auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C.
<PAGE>
Exhibit
Number Description
------- -----------
(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. 333-31358), declared effective by the Commission on
March 21, 2000.
** 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:
(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 Registrants
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plans
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
<PAGE>
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.
<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 18th day of December, 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 or her attorney-in-fact,
with full power of substitution in each, for him or her 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 Randive President, Chief Executive Officer, December 18, 2000
----------------------------------- Chairman of the Board and Director
Vivek Ranadive (Principal Executive Officer)
/s/ Paul G. Hansen Executive Vice President, Finance, December 18, 2000
----------------------------------- and Chief Financial Officer
Paul G. Hansen (Principal Financial Officer)
/s/ Ginger M. Kelly Corporate Controller and Chief December 18, 2000
----------------------------------- Accounting Officer (Principal
Ginger M. Kelly Accounting Officer)
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Peter Job Director December 18, 2000
-----------------------------------
Peter Job
/s/ Donald J. Listwin Director December 18, 2000
-----------------------------------
Donald J. Listwin
/s/ Larry W. Sonsini Director December 18, 2000
-----------------------------------
Larry W. Sonsini
/s/ Matthew Szulik Director December 18, 2000
-----------------------------------
Matthew Szulik
/s/ David Ure Director December 18, 2000
-----------------------------------
David Ure
</TABLE>
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
Number
------ -----------
3.1* Certificate of Incorporation of Registrant
4.1** 1996 Stock Option Plan
5.1 Opinion of consel as to legality of securities being
registered
23.1 Consent of PricewaterhouseCoopers LLP
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 (File No. 333-78195), declared effective by the Commission on
March 21, 2000.
** 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.
