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Filed on December 28, 2000
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
SEAGATE SOFTWARE
INFORMATION MANAGEMENT
GROUP HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 77-0537234
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
915 Disc Drive
Scotts Valley, California 95066
(Address of principal executive offices)
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1999 Stock Option Plan
2000 Stock Option Plan
(Full titles of the plans)
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Gregory B. Kerfoot
President and Chief Executive Officer
SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP
HOLDINGS, INC.
915 Disc Drive
Scotts Valley, California 95066
(831) 438-6550
(Name, address and telephone number of agent for service)
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Copies to:
John T. Sheridan, Esq. Susan J. Wolfe, Esq.
Wilson Sonsini Goodrich & Rosati, P.C. General Counsel and Secretary
650 Page Mill Road Seagate Software Information Management
Palo Alto, CA 94304 Group Holdings, Inc.
915 Disc Drive
Scotts Valley, CA 95066
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Re Registered Per Share (2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value (1) 22,207,736 $4.00 $88,830,944 $22,207.74
Common Stock, $.001 par value (1) 200,000 $4.00 $800,000 $200.00
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(1) Includes 22,207,736 shares to be registered under the 1999 Stock Option Plan
(the "1999 Plan") and 200,000 shares to be registered under the 2000 Stock
Option Plan (the "2000 Plan") (together, the "Plans"). This Registration
Statement shall also cover any additional shares of Common Stock which
become issuable under the Plans by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) The Proposed Maximum Offering Price Per Share was estimated pursuant to Rule
457(h) under the Securities Act. With respect to (i)10,532,706 shares
which are subject to outstanding options to purchase Common Stock under the
1999 Plan and (ii) 157,700 shares which are subject to outstanding options
to purchase Common Stock under the 2000 Plan, the Proposed Maximum Offering
Price Per Share was estimated pursuant to Rule 457(h) under which Rule the
per share price of options to purchase stock under an employee stock option
plan may be estimated by reference to the exercise price of such options.
The weighted average exercise price of the 10,532,706 shares subject to
outstanding options under the 1999 Plan to be registered is $4.00. The
weighted average exercise price of the 157,700 shares subject to outstanding
options under the 2000 Plan to be registered is $4.00. With respect to (i)
11,675,030 shares of Common Stock available for future grant under the 1999
Plan and (ii) 42,300 shares of Common Stock available for future grant under
the 2000 Plan, the Proposed Maximum Offering Price Per Share was also
estimated pursuant to Rule 457(h) whereby the per share price was determined
by reference to the book value of the securities to be offered because no
market exists for these securities. The number referenced above in the table
entitled "Proposed Maximum Offering Price Per Share" represents a weighted
average of the foregoing estimates calculated in accordance with Rule
457(h).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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We hereby incorporate by reference in this registration statement the
following documents heretofore filed with the Securities and Exchange Commission
(the "Commission"):
. Our registration statement on Form 10 (File No. 0-31859) pursuant to
Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act") dated
October 27, 2000, as amended, and effective December 26, 2000, containing
audited financial statements for the fiscal year ended June 30, 2000.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
Item 6. Indemnification of Directors and Officers
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The Registrant is subject to Section 145 of the Delaware General
Corporation Law ("Section 145"). Section 145 permits indemnification of a
corporation's officers and directors under certain conditions and subject to
certain limitations. Section 145 also provides that a corporation has the power
to maintain insurance on behalf of its officers and directors against any
liability asserted against such person and incurred by him or her in such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under the provisions of Section 145. Article VI, Sections 6.1, 6.2 and 6.3, of
the Registrant's Bylaws provide for mandatory indemnification of its directors
and officers and permissible indemnification of employees and other agents to
the maximum extent not prohibited by the Delaware General Corporation Law. For
purposes of this section, "directors" or "officers" include any person:
. who is or was a director or officer of the corporation;
. who is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint
venture, trust or other enterprise; or
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. who was a director or officer of a corporation, which was a
predecessor corporation of the Registrant, or of another
enterprise at the request of such predecessor corporation.
The rights to indemnity thereunder continue as to a person who has
ceased to be a director, officer, employee or agent and inure to the benefit of
the heirs, executors and administrators of the person. In addition, expenses
incurred by a director or executive officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding by reason of the fact
that he or she is or was a director or officer (or was serving at the
Registrant's request as a director or officer of another corporation) shall be
paid by the Registrant in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Registrant as authorized by the
relevant section of the Delaware General Corporation Law.
As permitted by Section 102(b)(7) of the Delaware General
Corporation Law, the Registrant's Certificate of Incorporation provides that,
pursuant to Delaware law, its directors shall not be personally liable for
monetary damages for breach of the directors' fiduciary duty as directors to the
corporation and its stockholders. This provision in the Certificate of
Incorporation does not eliminate the directors' fiduciary duty and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant for acts or omissions not in good
faith or involving international misconduct, for knowing violations of law, for
actions leading to improper personal benefit to the director and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Section 174 of the Delaware General Corporation Law. The provision also
does not affect a director's responsibilities under any other law, such as the
federal securities laws or state or federal environmental laws.
The Registrant has also entered into indemnification agreements
with each of its directors and executive officers. Generally, the
indemnification agreements attempt to provide the maximum protection permitted
by Delaware law as it may be amended from time to time and to obtain directors'
and officers' insurance if available on reasonable terms. Moreover, the
indemnification agreements provide for certain additional indemnification. Under
such additional indemnification provisions, however, an individual will not
receive indemnification for judgments, settlements or expenses if he or she is
found liable to the Registrant (except to the extent the court determines he or
she is fairly and reasonably entitled to indemnity for expenses), for
settlements not approved by the Registrant or for settlements and expenses if
the settlement is not approved by the court. The indemnification agreements
provide for the Registrant to advance to the individual any and all reasonable
expenses (including legal fees and expenses) incurred in investigating or
defending any such action, suit or proceeding. In order to receive an advance of
expenses, the individual must submit to the Registrant copies of invoices
presented to him or her for such expenses. Also, the individual must repay such
advances upon a final judicial decision that he or she is not entitled to
indemnification.
Item 7. Exemption From Registration Claimed
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Not applicable.
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Item 8. Exhibits
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4.1* 1999 Stock Option Plan and related agreements.
4.2* 2000 Stock Option Plan and related agreements.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the
legality of securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see Page II-5).
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* Incorporated by reference to registration statement on Form 10 (File No. 000-
31859) effective on December 26, 2000.
Item 9. Undertakings
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(a) Rule 415 Offering. The undersigned registrant hereby
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undertakes:
(1) To file, during any period in 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.
(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) Filings incorporating subsequent Exchange Act documents by
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reference.
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The undersigned 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.
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(c) Request for acceleration of effective date or filing of
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registration statement on Form S-8
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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 foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange 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 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 Scotts Valley, State of California, on December 28,
2000.
Seagate Software Information Management Group
Holdings, Inc.
By: /s/ Gregory B. Kerfoot
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Gregory B. Kerfoot
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gregory B. Kerfoot and Eric Patel,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, 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 Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-
fact, or his substitute or substitutes, may do or cause to be done by virtue
hereof.
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Gregory B. Kerfoot President and Chief Executive Officer and December 28, 2000
------------------------------------ Director (Principal Executive Officer)
(Gregory B. Kerfoot)
/s/ Eric Patel Chief Financial Officer (Principal Financial December 28, 2000
------------------------------------ and Accounting Officer)
(Eric Patel)
/s/ Stephen J. Luczo Chairman of the Board December 28, 2000
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(Stephen J. Luczo)
/s/ Donald L. Waite Director December 28, 2000
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(Donald L. Waite)
/s/ Gary B. Filler Director December 28, 2000
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(Gary B. Filler)
/s/ Lawrence Perlman Director December 28, 2000
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(Lawrence Perlman)
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SEAGATE SOFTWARE INFORMATION MANAGEMENT GROUP HOLDINGS, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
Exhibit
Number Description
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4.1* 1999 Stock Option Plan and related agreements.
4.2* 2000 Stock Option Plan and related agreements.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the
legality of securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-5).
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* Incorporated by reference to registration statement on Form 10
(File No. 000-31859) effective on December 26, 2000.
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