<PAGE>
As filed with the Securities and Exchange Commission on May 5, 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
EMBARCADERO TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 68-0310015
(State or Other (I.R.S. Employer
Jurisdiction of Identification No.)
Incorporation or
Organization)
425 Market Street, Suite 425, San Francisco, California 94105
(Address of Principal Executive Offices)
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
2000 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full Title of the Plans)
Stephen R. Wong
Chairman
Embarcadero Technologies, Inc.
425 Market Street, Suite 425
San Francisco, California 94105
(Name and Address of Agent For Service)
(415) 834-3131
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
STEPHEN C. FERRUOLO
HELLER EHRMAN WHITE & MCAULIFFE, LLP
4250 EXECUTIVE SQUARE, 7TH FLOOR
LA JOLLA, CALIFORNIA 92037
TELEPHONE: (858) 450-8400
FACSIMILE: (858) 450-8499
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CALCULATION OF REGISTRATION FEE
================================================================================================================
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered per Share(1) Offering Price Fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $0.001 par value 7,033,404 $14.125 $99,346,831.50 $26,228.00
================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457 under the Securities Act of 1933,
as amended, based on the average of the high and low sale price of the
common stock on the Nasdaq National Market on May 3, 2000, as reported
in the Wall Street Journal.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are incorporated by
reference in this registration statement:
(a) The Registrant's prospectus filed with the Commission pursuant
to Rule 424(b)(4) of the Securities Act of 1933, as amended
(the "Securities Act"), in connection with the Registration
Statement on Form S-1 as amended and supplemented from time to
time (Registration No. 333-30850) originally filed with the
Commission on February 22, 2000, and the Registration
Statement on Form S-1 filed with the Commission on April 20,
2000 (Registration No. 333-35190) pursuant to Rule 462(b) of
the Securities Act, (collectively, the "Registration
Statements") in which there is set forth audited financial
statements for the Registrant's fiscal years ended December
31, 1997, December 31, 1998 and December 31, 1999; and
(b) The description of the Common Stock of the Registrant
contained in the Registrant's Registration Statements on Form
8-A (No. 000-018857) filed with the Commission on April 11,
2000, as amended on April 20, 2000, pursuant to Section 12 of
the Exchange Act of 1934, as amended (the "Exchange Act").
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the termination of
the offering of the securities offered hereby shall be deemed to be incorporated
by reference into this registration statement and to be a part hereof from the
respective dates of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this registration statement
to the extent that a statement contained herein, or in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the Common Stock offered hereby will be passed upon for
the Registrant by Heller Ehrman White & McAuliffe, LLP, Palo Alto, California.
Heller Ehrman White & McAuliffe, LLP, beneficially owns 1,500 shares of our
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damage for a breach
of his or her fiduciary duty as a director, except in the case where the
director breached his or her duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the
payment of a dividend or approved a stock repurchase in violation of Delaware
corporate law or obtained an improper personal benefit. The Registrant's Amended
and Restated Certificate of Incorporation contains a provision that eliminates
directors' personal liability as set forth above.
Section 145 of the Delaware General Corporation Law, as amended,
provides that a corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
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completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving at its
request in such capacity in another corporation or business association against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
In addition, Article Ninth of the Registrant's Amended and Restated
Certificate of Incorporation provides as follows:
"NINTH.
A. To the fullest extent permitted by applicable law, the
corporation is also authorized to provide indemnification of (and
advancement of expenses to) such agents (and any other persons to which
Delaware law permits the corporation to provide indemnification)
through Bylaw provisions, agreements with such agents or other persons,
vote of stockholders or disinterested directors or otherwise, in excess
of the indemnification and advancement otherwise permitted by Section
145 of the Delaware General Corporation Law, subject only to limits
created by applicable Delaware law (statutory or non-statutory), with
respect to actions for breach of duty to a corporation, its
stockholders, and others.
B. Any repeal or modification of any of the foregoing
provisions of this Article NINTH shall not adversely affect any right
or protection of a director, officer, agent or other person existing at
the time of, or increase the liability of any director of the
Corporation with respect to any acts or omissions of such director,
officer or agent occurring prior to such repeal or modification.
C. The corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust
or other enterprise against, any expense, liability or loss reasonably
incurred or suffered by such person in connection with his or her
service as a director, officer, employee or agent of such entity,
whether or not the corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law."
The Registrant has purchased directors and officers liability insurance
which would indemnify the directors and officers of the Registrant against
damages arising out of certain kinds of claims which might be made against them
based on their negligent acts or omissions while acting in their capacity as
such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Heller Ehrman White & McAuliffe (filed as part
of Exhibit 5.1)
24 Power of Attorney (page II-4)
99.1(1) Amended and Restated 1993 Stock Option Plan
99.2(1)2000 Nonemployee Directors Stock Option Plan
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(1) Incorporated by reference to Registrant's Registration
Statements on Form S-1 as amended and supplemented from time
to time (Registration No. 333-30850) originally filed with
the Commission on February 22, 2000.
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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;
(iii) 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 paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or 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 the provisions described in Item 6, 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 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, 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 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 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 San Francisco, State of California, on this 5th day
of May, 2000.
EMBARCADERO TECHNOLOGIES, INC.
By: /s/ Ellen W. Taylor
--------------------------------------------
Ellen W. Taylor
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Ellen W. Taylor and Raj P.
Sabhlok, and each of them, with full power of substitution and full power to act
without the other such person's true and lawful attorney-in-fact and agent for
such person in such person's name, place and stead, in any and all capacities,
to sign any or all amendments (including post-effective amendments) to this
Registration Statement on Form S-8 and to file the same, with all exhibits
thereto, and other 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 in order to
effectuate the same as fully, to all intents and purposes, as they or such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or any of them, 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 below by the following persons in the
capacities as of May 5, 2000.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Ellen W. Taylor President, Chief Executive Officer May 5, 2000
- ------------------------------------- (Principal Executive Officer)
Ellen W. Taylor
/s/ Raj P. Sabhlok
- ------------------------------------- Senior Vice President of Finance and May 5, 2000
Raj P. Sabhlok Business Development
(Principal Accounting Officer)
/s/ Stephen R. Wong Chairman of the Board May 5, 2000
- -------------------------------------
Stephen R. Wong
/s/ Frank J. Polestra Director May 5, 2000
- ------------------------------------
Frank J. Polestra
/s/ Dennis J. Wong Director May 5, 2000
- ------------------------------------
Dennis J. Wong
/s/ Michael J. Roberts Director May 5, 2000
- ------------------------------------
Michael J. Roberts
</TABLE>
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INDEX TO EXHIBITS
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Item No . Descrption of Items
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<S> <C>
5.1 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Heller Ehrman White & McAuliffe (filed as part of Exhibit 5.1)
24 Power of Attorney (page II-4)
99.1(1) Amended and Restated 1993 Stock Option Plan
99.2(1) 2000 Nonemployee Directors Stock Option Plan
(1) Incorporated by reference to Registrant's Registration Statements
on Form S-1 as amended and supplemented from time to time
(Registration No. 333-30850) originally filed with the Commission
on February 22, 2000.
</TABLE>
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Exhibit 5.1
May 5, 2000
Embarcadero Technologies, Inc.
425 Market Street, Suite 425
San Francisco, California 94105
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to Embarcadero Technologies, Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") which the Company proposes to file with
the Securities and Exchange Commission on or about May 5, 2000, for the purpose
of registering under the Securities Act of 1933, as amended, 7,033,404 shares
of its Common Stock, $.001 par value per share (the "Shares"). Of the Shares,
6,833,404 are issuable under the Company's Amended and Restated 1993 Stock
Option Plan and 200,000 are issuable under the Company's 2000 Nonemployee
Directors Stock Option Plan (collectively, the "Plans").
In connection with this opinion, we have assumed the authenticity of
all records, documents and instruments submitted to us as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all records, documents and instruments submitted
to us as copies. We have based our opinion upon our review of the following
records, documents and instruments:
(a) The Certificate of Incorporation of the Company, as amended to
date, certified by the Secretary of State of the State of
Delaware as of May 3, 2000 and certified to us by an officer
of the Company as being complete and in full force and effect
as of the date of this opinion;
(b) The Amended and Restated Bylaws of the Company, as amended to
date, certified to us by an officer of the Company as being
complete and in full force and effect as of the date of this
opinion;
<PAGE>
Embarcadero Technologies, Inc. HELLER EHRMAN WHITE & MCAULIFFE
May 5, 2000 ATTORNEYS
Page 2
(c) A Certificate of an officer of the Company (i) attaching
records certified to us as constituting all records of
proceedings and actions of the Board of Directors and
stockholders of the Company relating to the adoption and
approval of the Plans, and (ii) certifying as to certain
factual matters;
(d) A Certificate of ChaseMellon Shareholder Services, L.L.C., the
transfer agent of the Company, as to the number of shares of
common stock of the Company outstanding as of May 4, 2000;
and
(e) The Plans.
This opinion is limited to the federal laws of the United States of
America and the General Corporation Law of the State of Delaware. We disclaim
any opinion as to any other statute, rule, regulation, ordinance, order or other
promulgation of any other jurisdiction or any regional or local governmental
body or as to any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered, issued and sold, (ii) the Shares
to be sold are issued in accordance with the terms of the Plans, (iii) the
Company receives the full consideration for the Shares as stated in the Plans,
(iv) the per share consideration for each Share includes payment of cash or
other lawful consideration at least equal to the par value of the Company's
common stock, and (v) all applicable securities laws are complied with, it is
our opinion that the Shares covered by the Registration Statement, when issued
and sold by the Company, after payment therefore in the manner provided in the
applicable Plan and the Registration Statement, will be legally issued, fully
paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm, corporation
or other entity for any purpose, without our prior written consent. We disclaim
any obligation to advise you of any change of law that occurs, or any facts of
which we may become aware, after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe LLP
<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 February 17, 2000 relating to the
financial statements, which are incorporated by reference in the Registration
Statements on Form S-1 (No. 333-30850) of Embarcadero Technologies, Inc.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, CA
May 5, 2000
