As filed with the Securities and Exchange Commission on July 29, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Boole & Babbage, Inc.
(Exact name of registrant as specified in its charter)
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Delaware 94-1651571
(State of Incorporation) (I.R.S. Employer Identification No.)
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3131 Zanker Road
San Jose, California 95134
(408) 526-3000
(Address and telephone number of principal executive offices)
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1995 Stock Option Plan
Employee Stock Purchase Plan
(Full title of the plans)
Paul E. Newton
President and Chief Executive Officer
3131 Zanker Road
San Jose, California 95134
(408) 526-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
Alan C. Mendelson, Esq.
Michael J. Sullivan, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(415) 843-5000
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Share Aggregate Offering Price Amount of Registration
Registered Registered (1) (1) Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and
Common Stock (par
value $.001) 726,482 $24.9375 18,116,644.87 $5,489.89
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon the average of the high and low prices of
Registrant's Common Stock on July 24, 1997 as reported on The Nasdaq National
Market.
</FN>
</TABLE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 167,107 shares of the Company's Common Stock to be
issued pursuant to the Company's 1995 Stock Option Plan (the "Plan") and an
additional 559,375 shares of the Company's Common Stock to be issued pursuant to
the Company's Employee Stock Purchase Plan (the "Purchase Plan"). The
Registration Statements on Form S-8 previously filed with the Commission
relating to the Plan and the Purchase Plan (File Nos. 333-02723 and 33-55588)
are incorporated by reference herein.
EXHIBITS
Exhibit
Number
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1.
24 Power of Attorney is contained on the signature pages.
99.1 1995 Stock Option Plan.1
99.2 Employee Stock Purchase Plan.
- --------------
1 Previously filed as an Exhibit to the Registration Statement on Form S-8
filed on April 23, 1996. (File No. 333-02723)
1.
<PAGE>
SIGNATURES
The Registrant. 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 the City of San Jose, State of California, on July
29, 1997.
BOOLE & BABBAGE, INC.
By: /s/ Arthur F. Knapp, Jr.
---------------------------
Title Chief Financial Officer
------------------------
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul E. Newton and Arthur F. Knapp, Jr.,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, 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
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
2.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Paul E. Newton President and Chief Executive July 29, 1997
- --------------------------- Officer
(Paul E. Newton) (Principal Executive Officer)
/s/ Arthur F. Knapp, Jr. Chief Financial Officer July 29, 1997
- --------------------------- (Principal Financial and
(Arthur F. Knapp, Jr.) Accounting Officer)
/s/ Franklin P. Johnson, Jr. Director July 29, 1997
- ----------------------------
(Franklin P. Johnson, Jr.)
/s/ Johannes S. Bruggeling Director July 29, 1997
- ----------------------------
(Johannes S. Bruggeling)
/s/ Raymond E. Cairns Director July 29, 1997
- ----------------------------
(Raymond E. Cairns)
/s/ Terry R. McGowan Director July 29, 1997
- ----------------------------
(Terry R. McGowan)
/s/ Paul E. Newton Director July 29, 1997
- ----------------------------
(Paul E. Newton)
/s/ Carl H. Reynolds Director July 29, 1997
- ----------------------------
(Carl H. Reynolds)
3.
EXHIBIT 5.1
July 25, 1997
Boole & Babbage, Inc.
3131 Zanker Road
San Jose, CA 95134
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Boole & Babbage, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to an aggregate of 726,482
shares of the Company's Common Stock, $.001 par value, pursuant to its 1995
Stock Option Plan and Employee Stock Purchase Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plans, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward LLP
By: /s/ Michael J. Sullivan
-------------------------------
Michael J. Sullivan
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1995 Stock Option Plan and Employee Stock Purchase
Plan of Boole & Babbage, Inc. of our report dated October 25, 1996, with respect
to the consolidated financial statements of Boole & Babbage, Inc. incorporated
by reference in its Annual Report (Form 10-K) for the year ended September 30,
1996 and the related financial statement schedule included therein, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
July 24, 1997
<PAGE>
BOOLE & BABBAGE, INC.
EMPLOYEE STOCK PURCHASE PLAN
Adopted November 2, 1983
Approved by Shareholders
Amended September 14, 1992
Approved by Shareholders February 4, 1993
Adjusted for 3-for-2 stock split on November 7, 1994
Amended February 16, 1995
Adjusted for 3-for-2 stock split on November 6, 1995
Adjusted for 3-for-2 stock split on December 10, 1996
Amended February 20, 1997
1. PURPOSE.
(a) The purpose of the Plan is to provide a means by which
employees of Boole & Babbage, Inc., a Delaware corporation (the "Company"), and
its affiliates, as defined in subparagraph 2(a), which are designated as
provided in subparagraph 3(b), may be given an opportunity to purchase stock of
the Company.
(b) The Company, by means of the Plan, seeks to retain the
services of its employees, to secure and retain the services of new employees,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company.
(c) The Company intends that the rights to purchase stock of
the Company granted under the Plan be considered options issued under an
"employee stock purchase plan" as that term is defined in Section 423(b) of the
Internal Revenue Code (the "Code").
2. DEFINITIONS.
(a) "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company, as those terms are defined
in Sections 425(e) and (f), respectively, of the Code.
1.
<PAGE>
(b) "Total Compensation" shall mean a participant's wages,
salaries and other amounts received for personal services rendered to the
Company or an Affiliate as an employee, including amounts paid to the
participant as a commission. However, Total Compensation shall not include
amounts paid to a participant as a bonus or any contributions by the Company or
an Affiliate for or on account of any participant under any employee benefit
plan of the Company or Affiliate.
3. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors
(the "Board") of the Company unless and until the Board delegates administration
to a committee, as provided in subparagraph 3(c). Whether or not the Board has
delegated administration, the Board shall have the final power to determine all
questions of policy and expediency that may arise in the administration of the
Plan.
(b) The Board shall have the power, subject to, and within the
limitations of, the express provisions of the Plan:
(i) To determine when and how rights to purchase
stock of the Company shall be granted and the provisions of each offering of
such rights (which need not be identical).
(ii) To designate from time to time which Affiliates
of the Company shall be eligible to participate in the Plan.
(iii) To construe and interpret the Plan and rights
granted under it, and to establish, amend and revoke rules and regulations for
its administration. The Board, in the
2.
<PAGE>
exercise of this power, may correct any defect, omission or inconsistency in the
Plan, in a manner and to the extent it shall deem necessary or expedient to make
the Plan fully effective.
(iv) To amend the Plan as provided in paragraph 14.
(v) Generally, to exercise such powers and to perform
such acts as the Board deems necessary or expedient to promote the best
interests of the Company.
(c) The Board may delegate administration of the Plan to a
Committee composed of not fewer than two (2) members of the Board (the
"Committee"). If administration is delegated to a Committee, the Committee shall
have, in connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board. The Board may abolish the Committee at any time and revest in the Board
the administration of the Plan.
4. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 13 relating to
adjustments upon changes in stock, the stock that may be sold pursuant to rights
granted under the Plan shall not exceed in the aggregate two million five
hundred thousand (2,500,000) shares of the Company's common stock. If any right
granted under the Plan shall for any reason terminate without having been
exercised, the stock not purchased under such right shall again become available
for the Plan.
(b) The stock subject to the Plan may be unissued shares or
reacquired shares, bought on the market or otherwise.
3.
<PAGE>
5. GRANT OF RIGHTS; OFFERING.
The Board or the committee may from time to time grant or
provide for the grant of rights to purchase stock of the Company under the Plan
to eligible employees (the "Offering") on a date or dates (the "Offering
Date(s)") selected by the Board or the committee. Each Offering shall be in such
form and shall contain such terms and conditions as the Board or the committee
shall deem appropriate. The provisions of separate Offerings need not be
identical, but each Offering shall include (through incorporation of the
provisions of this Plan by reference in the Offering or otherwise) the substance
of the provisions contained in paragraphs 6 through 9, inclusive.
6. ELIGIBILITY.
(a) Rights may be granted only to employees of the Company or,
as the Board or the committee may designate as provided in subparagraph 3(b), to
employees of any Affiliate. Except as provided in subparagraph 6(b), an employee
of the Company or any Affiliate shall not be eligible to be granted rights under
a particular Offering unless, on the relevant Offering Date, such employee has
been in the employ of the Company or any Affiliate for a continuous period of at
least 6 months preceding such grant. In addition, no employee of the Company or
any Affiliate shall be eligible to be granted rights under the Plan, unless, on
the relevant Offering Date, such employee's customary employment with the
Company or such Affiliate is at least 20 hours per week and at least 5 months
per calendar year.
(b) Unless otherwise determined by the Board, each person who,
during the course of an Offering, first becomes an eligible employee of the
Company will, on the first business day of any month of January, April, July or
October, or, alternatively, such other date
4.
<PAGE>
or dates determined by the Board specified in the relevant Offering, which
coincides with the day on which such person becomes an eligible employee or
occurs thereafter, receive a right under that Offering. Such right shall have
the same characteristics as any rights originally granted under that Offering,
as described herein, except that:
(i) the date on which such right is granted shall be
the "Offering Date" of such right for all purposes, including determination of
the exercise price of such right;
(ii) the Purchase Period (as defined below) for such
right shall begin on its Offering Date and end coincident with the end of such
Offering; and
(iii) if such person first becomes an eligible
employee within three months of the end of the Purchase Period (as defined
below) for such Offering, he or she will not receive any right under that
Offering.
(c) No employee shall be eligible for the grant of any rights
under the Plan if, immediately after any such rights are granted, such employee
owns stock possessing 5% or more of the total combined voting power or value of
all classes of stock of the Company or of any Affiliate. For purposes of this
subparagraph 6(e), the rules of Section 424(d) of the Code shall apply in
determining the stock ownership of any employee, and stock which such employee
may purchase under all outstanding rights and options shall be treated as stock
owned by such employee.
(d) An eligible employee may be granted rights under the Plan
only if such rights, together with any other rights granted under "employee
stock purchase plans" of the Company and any Affiliates, as specified by Section
423(b)(8) of the Code, do not permit such employee's rights to purchase stock of
the Company or any affiliate to accrue at a rate which
5.
<PAGE>
exceeds $25,000 of fair market value of such stock (determined at the time such
rights are granted) for each calendar year in which such rights are outstanding
at any time.
7. RIGHTS; PURCHASE PRICE.
(a) Rights granted under the Plan shall be exercisable
periodically during a twenty-seven (27) month period or such shorter period as
may be determined by the Board (a "Purchase Period"). In connection with each
Offering made under this Plan, the Board or the committee shall specify a
maximum number of shares which any employee may be granted the right to purchase
pursuant to such Offering. In addition, in connection with each such Offering,
the Board or the committee shall specify a maximum aggregate number of shares
which may be purchased pursuant to such Offering. If the aggregate purchase of
shares upon exercise of rights granted under the Offering would exceed such
maximum aggregate number, the Board or the committee shall make a pro rata
allocation of the shares available in as nearly a uniform manner as shall be
practicable and as it shall deem to be equitable.
(b) The purchase price of stock acquired pursuant to rights
granted under the Plan shall be not less than the lesser of:
(i) an amount equal to 85% of the fair market value
of the stock on the Offering Date; or
(ii) an amount equal to 85% of the fair market value
of the stock on the Exercise Date, as defined in paragraph 9.
6.
<PAGE>
8. PARTICIPATION; WITHDRAWAL; TERMINATION.
(a) An eligible employee may become a participant in the Plan
by delivering an agreement to the Company before the Offering Date for a given
Purchase Period, in such form as the Company provides. Each such agreement shall
authorize payroll deductions of up to 10% of such employee's Total Compensation
during each Purchase Period. The payroll deductions made for each participant
shall be credited to an account for such participant under the Plan and shall be
deposited with the general funds of the Company. If permitted by the terms of a
particular Offering, during the Purchase Period a participant may reduce or
terminate his or her payroll deductions. A participant may not increase or begin
such payroll deductions after the beginning of any Purchase Period. A
participant may not make any additional payments into his or her account. A
participant who has elected to participate in a given Purchase Period shall
automatically participate in each subsequent Purchase Period on the same terms
and conditions, as modified by changes in the terms of such participant's
agreement in accordance with the Plan, until the time that the participant
withdraws from a Purchase Period under subparagraph 8(b) or is terminated from
further participation in the Plan under subparagraph 8(c).
(b) If a participant terminates his or her payroll deductions,
such participant may withdraw from an Offering by delivering to the Company a
notice of withdrawal. Such withdrawal may be elected at any time prior to the
end of the Purchase Period, except as provided by the Board or the committee in
the Offering. Upon such withdrawal from an Offering by a participant, the
Company shall distribute to such participant all of his or her accumulated
payroll deductions without interest, and such participant's interest in that
Offering shall be automatically terminated. A participant's withdrawal from an
Offering will have no
7.
<PAGE>
effect upon such participant's eligibility to participate in any other Offerings
under the Plan; provided that the participant satisfies the requirements of
subparagraph 8(a) at the time of the commencement of a future Offering.
(c) Rights granted pursuant to any Offering under the Plan
shall terminate immediately upon cessation of any participant's employment with
the Company or an Affiliate, unless the participant dies while in the employ of
the Company or an Affiliate, in which case, the person or persons to whom the
participant's rights under the Plan pass by will or by the laws of descent and
distribution (the "successor") shall continue as a participant until the next
Exercise Date after the date of death of the participant, except that no further
payroll deductions shall be added to the participant's account.
(d) Rights granted under the Plan shall not be transferable
except by will or by the laws of descent and distribution, and shall be
exercisable during the lifetime of the person to whom such rights are granted
only by such person.
9. EXERCISE.
(a) The first business day of each April and October (during
any Purchase Period), or, alternatively, such other exercise dates determined by
the Board, as defined in the relevant Offering shall be defined as an "Exercise
Date." On each Exercise Date, each participant's accumulated payroll deductions
(without any increase for interest) will be applied to the purchase of whole
shares of stock of the Company, up to the maximum number of shares permitted
pursuant to subparagraph 7(a), at the purchase price stated in subparagraph
7(b). No fractional shares shall be issued upon the exercise of rights granted
under the Plan. Any amount sufficient to buy one or more whole shares of stock
of the Company remaining in a participant's
8.
<PAGE>
account after the purchase of the maximum number of shares the participant is
able to purchase with his or her accumulated payroll deductions at the end of
any Purchase Period shall be distributed to such participant as soon as
reasonably possible after the end of such Purchase Period, without interest,
with any remaining balance in the participant's account which is less than the
amount required to purchase a whole share of Company stock being held in the
participant's account and used for the purchase of shares of stock of the
Company under any subsequent right that he or she might be granted under the
Plan.
(b) No rights granted under the Plan may be exercised to any
extent unless the Plan (including rights granted thereunder) is covered by an
effective registration statement pursuant to the Securities Act of 1933, as
amended. If, on an Exercise Date of any Offering hereunder, the Plan is not so
registered, no rights granted under the Plan or any Offering shall be exercised
and all payroll deductions accumulated during the purchase period shall be
distributed to the participants, without interest.
10. COVENANTS OF THE COMPANY.
(a) During the terms of the rights granted under the Plan, the
Company shall keep available at all times the number of shares of stock required
to satisfy such rights.
(b) The Company shall seek to obtain from each regulatory
commission or agency having jurisdiction over the Plan such authority as may be
required to issue and sell shares of stock upon exercise of the rights granted
under the Plan; provided, however, that this undertaking shall not require the
Company to register or qualify under the Securities Act or any state securities
law either the Plan, any rights granted under the Plan or any stock issued or
issuable pursuant to any such rights. If the Company is unable to obtain from
any such
9.
<PAGE>
regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the Plan, the
Company shall be relieved from any liability for failure to issue and sell stock
upon exercise of such rights unless and until such authority is obtained.
11. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to rights granted
under the Plan shall constitute general funds of the Company.
12. RIGHTS AS A SHAREHOLDER.
Neither a participant nor his or her successor shall be deemed
to be the holder of, or to have any of the rights of a holder with respect to,
any shares subject to such rights unless and until certificates representing
such shares shall have been issued.
13. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or
subject to any rights granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange of
shares, change in corporate structure of otherwise), the Board shall make
appropriate adjustments in the maximum number of shares subject to the Plan and
the number of shares and price per share of stock subject to outstanding rights.
(b) In the event of: (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the surviving
corporation; (3) a reverse merger in which the Company is the surviving
corporation but the shares of the Company's
10.
<PAGE>
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise; or (4) any other capital reorganization in which more than
50% of the shares of the Company entitled to vote are exchanged, then, as
determined by the Board in its sole discretion, any surviving corporation shall
assume outstanding rights or substitute similar rights for those under the Plan,
or such rights shall continue in full force and effect, or such rights shall be
exercised immediately prior to such event, unless another corporation assumes
such rights or substitute similar rights for those under the Plan or the Board
determines in its sole discretion that such rights shall continue in full force
and effect.
14. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend
the Plan. However, except as provided in paragraph 13 relating to adjustments
upon changes in stock, no amendment shall be effective unless approved by the
shareholders of the Company within 12 months before or after the adoption of the
amendment, where the amendment will:
(i) Increase the number of shares reserved for rights
under the Plan; or
(ii) Modify the provisions as to eligibility for
participation in the Plan or modify the Plan in any other way to the extent such
modification requires shareholder approval in order for the Plan to obtain
employee stock purchase plan treatment under Section 423 of the Code).
It is expressly contemplated that the Board may amend the Plan in any respect
the Board deems necessary or advisable to provide eligible employees with the
maximum benefits provided or to
11.
<PAGE>
be provided under the provisions of the Code and the regulations promulgated
thereunder relating to employee stock purchase plans and/or to bring the Plan
and/or rights granted under it into compliance therewith.
(b) Rights and obligations under any rights granted before
amendment of the Plan shall not be impaired by any amendment of the Plan, except
with the consent of the person to whom such rights were granted.
15. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time.
Unless sooner terminated, the Plan shall terminate on September 13, 2002. No
rights may be granted under the Plan while the Plan is suspended or after it is
terminated.
(b) Rights and obligations under any rights granted while the
Plan is in effect shall not be altered or impaired by suspension or termination
of the Plan, except with the consent of the person to whom such rights were
granted.
16. EFFECTIVE DATE OF PLAN.
The Plan shall become effective as determined by the Board,
but no rights granted under the Plan shall be exercised unless and until the
Plan has been approved by the vote of the shareholders of the Company.
12.
