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As filed with the Securities and Exchange Commission October 19, 2000
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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3165 Porter Drive
Palo Alto, CA 94304
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
____________________
Extensibility, Inc. 2000 Stock Plan
(Full name of the plan)
____________________
Paul G. Hansen
Chief Financial Officer
3165 Porter Drive
Palo Alto, CA 94304
(650) 846-1000
(Name, address, including zip code, and telephone number, including area code,
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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<CAPTION> CALCULATION OF REGISTRATION FEE
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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
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<S> <C> <C> <C> <C>
Common Stock, $0.001 par value, to be
issued upon exercise of options granted
and outstanding under the Extensibility,
Inc. 2000 Stock Plan....................... 106,877 $1.89 (2) $202,013 $53.33
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</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) Calculated 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 13, 2000, which average is $1.89.
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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 pursuant to Section 13(a) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended February 29, 2000, May 31, 2000, and August 31, 2000,
respectively, filed pursuant to Section 13(a) of the Exchange
Act.
3. The Registrant's Current Report on Form 8-K filed on September 9,
2000.
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.
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
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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.
<TABLE>
<CAPTION>
Exhibit
Number Description
----------- -------------------------------------------------------------------
<S> <C>
4.1 Extensibility, Inc. 2000 Stock Plan.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of PRICEWATERHOUSE COOPERS LLP, independent auditors.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).
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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 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
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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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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 13th day of
October, 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, Chairman October 13, 2000
_______________________________________ of the Board and Director (Principal
Vivek Ranadive Executive Officer)
/s/ Paul G. Hansen Executive Vice President, Finance, and Chief October 13, 2000
_______________________________________ Financial Officer (Principal Financial
Paul G. Hansen Officer)
/s/ Ginger M. Kelly Corporate Controller and Chief Accounting October 13, 2000
_______________________________________ Officer (Principal Accounting Officer)
Ginger M. Kelly
/s/ Yogen K. Dalal Director October 13, 2000
_______________________________________
Yogen K. Dalal
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
--------------------------------------- --------------------------------------------- ---------------------
<S> <C> <C>
/s/ Peter Job October 12, 2000
_______________________________________ Director
Peter Job
/s/ Edward R. Kozel October 13, 2000
_______________________________________ Director
Edward R. Kozel
/s/ Donald J. Listwin October 13, 2000
_______________________________________ Director
Donald J. Listwin
/s/ Larry W. Sonsini October 11, 2000
_______________________________________ Director
Larry W. Sonsini
_______________________________________ Director
Matthew Szulik
/s/ David G. Ure October 13, 2000
_______________________________________ Director
David G. Ure
_______________________________________ Director
Michelangelo Volpi
/s/ Philip K. Wood October 13, 2000
_______________________________________ Director
Philip K. Wood
</TABLE>
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INDEX TO EXHIBITS
Exhibit
Number Description
--------------- ---------------------------------------------------------------
4.1 Extensibility, Inc. 2000 Stock Plan.
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of PRICEWATERHOUSE COOPERS LLP, independent auditors.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in
Exhibit 5.1).
24.1 Power of Attorney (contained on signature page).
