Filed with the Securities and Exchange Commission on June 15, 2000
Securities Act Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
TIMBERLINE SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Oregon 93-0748489
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(State of incorporation) (I.R.S. Employer Identification No.)
15195 N.W. Greenbrier Parkway, Beaverton, Oregon 97006
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(Address of principal executive offices) (Zip Code)
2000 Stock Incentive Plan
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(Full title of the plan)
Curtis L. Peltz, President and Chief Executive Officer
Timberline Software Corporation
15195 N.W. Greenbrier Parkway
Beaverton, Oregon 97006
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(Name, address and telephone number
of agent for service)
Copies to:
Kenneth E. Roberts, Esq.
Foster Pepper & Shefelman LLP
101 S.W. Main St., 15th Floor
Portland, Oregon 97204
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Number of Maximum Maximum Amount of
Title of Securities Shares Being Offering Price Aggregate Registration
Being Registered Registered(1) Per Share(2) Offering Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock 1,500,000 $8.0625 $12,093,750 $3,192.75
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</TABLE>
(1) The shares of Common Stock represent the number of shares which may be
issued pursuant to the 2000 Stock Incentive Plan. In addition, pursuant
to Rule 416, this Registration Statement also covers an indeterminate
number of additional shares which may be issuable as a result of the
anti-dilution provisions of Plan.
(2) The maximum offering price for the shares cannot presently be determined
as the offering price is established at the time shares are issued.
Pursuant to Rule 457(h), the offering price is estimated based on the
last sale price reported for the Common Stock on the Nasdaq National
Market on June 8, 2000, and the maximum offering price is calculated for
the sole purpose of determining the Registration Fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Timberline Software Corporation (the
"Company") with the Securities and Exchange Commission are incorporated by
reference in this registration statement:
1. The Company's annual report on Form 10-K filed with the Commission
on March 30, 2000 (File No. 0-16376).
2. The description of the Company's Common Stock, no par value (the
"Common Stock"), set forth in the Company's Registration Statement
on Form S-18, as declared effective on February 9, 1984
(Registration No. 2-87409-S).
All documents filed by the Company subsequent to those listed above
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a 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.
Under the Oregon Business Corporation Act (the "Act"), the Company's
Restated Articles of Incorporation, as amended (the "Articles"), and the
Company's Amended and Restated Bylaws (the "Bylaws"), the Company has broad
powers to indemnify directors and officers against liabilities that they may
incur in such capacities.
Under ORS 60.387 to ORS 60.414, a person who is made a party to a
proceeding because such person is or was an officer or director of the
corporation shall be indemnified by the corporation (unless the corporation's
articles of incorporation provide otherwise) against reasonable expenses
incurred by such person in connection with the proceeding if such person is
wholly successful on the merits or otherwise or if ordered by a court of
competent jurisdiction. In addition, a corporation is permitted to indemnify
such persons against liability incurred in a proceeding if: (i) such person's
conduct was in good faith and in a manner he or she reasonably believed was in
the corporation's best interests, or, at least, not opposed to its best
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interests; (ii) such person had no reasonable cause to believe his or her
conduct was unlawful if the proceeding was a criminal proceeding; (iii) such
person was not adjudged liable to the corporation if the proceeding was by or
in the right of the corporation (in which case indemnification is limited to
such person's reasonable expenses in connection with the proceeding); and (iv)
such person was not adjudged liable on the basis that he or she improperly
received a personal benefit.
The Articles and Bylaws require the indemnification of a director made or
threatened to be made party to a proceeding because such person is or was a
director of the Company or one of its subsidiaries against certain liabilities
and expenses if: (i) the director's conduct was in good faith; (ii) the
director reasonably believed that his or her conduct was in the best interest
of the corporation, or at least not opposed to its best interests; and (iii)
in the case of a criminal proceeding, the director had no reasonable cause to
believe that the conduct was unlawful. In the case of any proceeding by or in
the right of the Company, a director is entitled to indemnification against
certain expenses, except that no indemnification generally would be made if:
(i) the director has been adjudged liable to the Corporation; or (ii) the
officer or director received an improper personal benefit.
The Articles and Bylaws further permit indemnification to be provided to
persons other than directors, including officers, employees and agents, under
certain circumstances. The Bylaws state that the foregoing indemnification
provisions are not exclusive of any other right to which any person may be
entitled under any statute, the Articles, Bylaws, agreement, general or
specific action of the Board, vote of the shareholders or otherwise. The
Articles also provide that to the full extent of the Act, no director will be
liable to the Company or its shareholders for monetary damages for conduct as
a director.
The Company has entered into indemnification agreements with each of its
directors and executive officers under which the Company agrees to indemnify
its directors to the fullest extent permitted by law. The Company also
maintains directors' and officers' liability insurance under which the
Company's directors and officers are insured against claims for errors,
neglect, breach of duty and other matters.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits required by Item 601 of Regulation S-K being filed herewith
or incorporated herein by reference are as follows:
Exhibit
4.1 Restated Articles of Incorporation, as amended (Incorporated by reference
to Exhibit 3.1 of Quarterly Report on Form 10-Q for the three months
ended September 30, 1998)
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4.2 Amended and Restated Bylaws (Incorporated by reference to Exhibit 3(ii)
of Quarterly Report on Form 10-QSB for the three months ended March 31,
1997)
4.3 Indemnification Agreement between the registrant and Thomas Coleman *
5.1 Opinion of Foster Pepper & Shefelman LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Foster Pepper & Shefelman LLP (Included in Exhibit 5.1)
24.1 Power of Attorney (Included in the signature page)
99 2000 Stock Incentive Plan and Form of Option Agreement
* Substantially identical agreements exist between the registrant and
executive officers Carol A. Vega, Matthew S. Lange, James O. Campbell, John M.
Geffel, Curtis L. Peltz and Carl C. Asai, as well as directors James A. Meyer,
Thomas P. Cox and Donald L. Tisdel
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(A) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(1) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(2) 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;
(3) 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 1 and 2 do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
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(B) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(C) 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.
(D) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(E) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that the 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. The foregoing undertaking shall not apply to indemnification
which is covered by insurance.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Beaverton, Oregon, on June 13, 2000.
TIMBERLINE SOFTWARE CORPORATION
By: /s/ Carl C. Asai
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Carl C. Asai, Senior Vice President - Finance and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
and appoints Curtis L. Peltz and Carl C. Asai, and each of them, with full
power of substitution to act as his true and lawful attorney in fact and agent
to act in his name, place and stead, and to execute in the name and on behalf
of each person, individually and in each capacity stated below, and to file
any and all amendments to this registration statement, including any and all
post-effective amendments or new registration pursuant to Rule 462.
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 date indicated.
/s/ Curtis L. Peltz 6/13/00
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Curtis L. Peltz, President, Date
Chief Executive Officer and Director
/s/ Carl C. Asai 6/13/00
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Carl C. Asai, Senior Vice President - Finance Date
and Chief Financial Officer
/s/ James A. Meyer 6/13/00
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James A. Meyer, Director, Chairman of the Date
Board of Directors
/s/ Thomas P. Cox 6/13/00
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Thomas P. Cox, Director Date
/s/ Donald L. Tisdel 6/13/00
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Donald L. Tisdel, Director Date
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EXHIBIT INDEX
Exhibit
4.1 Restated Articles of Incorporation, as amended (Incorporated by reference
to Exhibit 3.1 of Quarterly Report on Form 10-Q for the three months
ended September 30, 1998)
4.2 Amended and Restated Bylaws (Incorporated by reference to Exhibit 3(ii)
of Quarterly Report on Form 10-QSB for the three months ended March 31,
1997)
4.3 Indemnification Agreement between the registrant and Thomas Coleman *
5.1 Opinion of Foster Pepper & Shefelman LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Foster Pepper & Shefelman LLP (Included in Exhibit 5.1)
24.1 Power of Attorney (Included in the signature page)
99 2000 Stock Incentive Plan and Form of Option Agreement
* Substantially identical agreements exist between the registrant and
executive officers Carol A. Vega, Matthew S. Lange, James O. Campbell, John M.
Geffel, Curtis L. Peltz and Carl C. Asai, as well as directors James A. Meyer,
Thomas P. Cox and Donald L. Tisdel
