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As Filed with the Securities and Exchange Commission on February 28, 1997
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SYBASE, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 94-2951005
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(State of incorporation) (I.R.S. Employer
Identification No.)
6475 Christie Avenue
Emeryville, California 94608
(510) 922-3500
(Address of principal executive offices)
MITCHELL L. GAYNOR
Vice President and General Counsel
SYBASE, INC.
6475 Christie Avenue, Emeryville, California 94608
(510) 922-3500
(Name, address and telephone number of agent for service)
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Copy to:
AARON ALTER, ESQ.
Wilson Sonsini Goodrich_& Rosati
Professional Corporation
650 Page Mill Road, Palo Alto, California 94304
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Approximate date of commencement of proposed sale to the public under this
Registration Statement: As soon as practicable after this Registration
Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X] ___________________
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] __________________
_______________________________________________________________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Per Aggregate Registration
be Registered Registered Share (1) Offering Price (1) Fee
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Common Stock, $.001 par value 750,000 Shares $16.00 $12,000,000 $3,637
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(1) Estimated solely for purposes of calculation of the registration fee based
on the average of the high and low prices of the Registrant's Common Stock on
the Nasdaq National Market on February 26, 1997.
The Registrant hereby amends this Registration Statement on such date o dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PROSPECTUS
750,000 SHARES
SYBASE, INC.
COMMON STOCK
($.001 PAR VALUE)
This Prospectus relates to the public offering, which is not being
underwritten, of shares of the common stock (the "Common Stock") of Sybase,
Inc. (together with its consolidated subsidiaries, "Sybase" or the "Company")
offered from time to time by any or all of the Selling Stockholders named
herein (the "Selling Stockholders") who received such shares in exchange for
their Common Stock of Purchase Net, Inc. ("PNET") upon the merger of PNET with
Sybase on February 21, 1997. Such shares were issued pursuant to an exemption
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), provided by Section 4(2) thereof. It is anticipated
that the Selling Stockholders will generally offer shares of Common Stock for
sale at prevailing prices in the over-the-counter market on the date of sale.
The Company will receive no part of the proceeds of sales made hereunder. All
expenses of registration incurred in connection with this offering are being
borne by the Company, but all selling and other expenses incurred by Selling
Stockholders will be borne by such Selling Stockholders. None of the shares
offered pursuant to this Prospectus have been registered prior to the filing of
the Registration Statement (the "Registration Statement") of which this
Prospectus is a part.
The Common Stock of the Company is traded in the over-the-counter
market on the Nasdaq National Market. On February 27, 1997, the closing price
of the Company's Common Stock, as reported in The Wall Street Journal, was
$16.125 (Nasdaq Symbol: SYBS).
SEE "RISK FACTORS"BEGINNING ON PAGE 3 FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE COMMON STOCK
OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March 21, 1997.
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No person is authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering described herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, nor shall there be any sale of these
securities by any person in any jurisdiction in which it is unlawful for such
person to make such offer, solicitation or sale. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create an
implication that the information contained herein is correct as of any time
subsequent to the date hereof.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon written or oral request of
any such person, a copy of any and all of the information that has been or may
be incorporated by reference in this Prospectus, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference
therein. Requests for such copies should be directed to: Investor Relations,
Sybase, Inc., 6475 Christie Avenue, Emeryville, California 94608. The
Company's telephone number at that location is (510) 922-3500.
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the Public
Reference Room of the Commission, 450_Fifth Street, N.W., Washington, D.C.
20549 and at the Commission's regional offices at 500 West Madison Street,
Suite_1400, Chicago, Illinois 60661-2511; and copies of such material can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates. Information regarding the
Company may also be obtained by calling the National Association of Securities
Dealers, Issuer Services at (202) 496-2500. The Commission maintains a web
site (http://www.sec.gov) that contains reports, proxy and information
statements and other information regarding the Company. Information, as of
particular dates, concerning directors and officers of the Company, their
remuneration, options granted to them, the principal holders of securities of
the Company, and any material interest of such persons in transactions with the
Company has been or will be disclosed in the proxy statements to be distributed
to stockholders of the Company and filed with the Commission.
THE COMPANY DOCUMENTS INCORPORATED BY REFERENCE HEREIN CONTAIN
FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S
ACTUAL RESULTS MAY DIFFER SIGNIFICANTLY FROM THE RESULTS DISCUSSED IN THE
FORWARD-LOOKING STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE
INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN "RISK FACTORS."
ADDITIONAL INFORMATION
The Company has filed with the Commission a Registration Statement on
Form S-3, including amendments thereto, under the Securities Act, with respect
to the shares of Common Stock offered hereby. This Prospectus does not contain
all of the information set forth in the Registration Statement and the exhibits
and schedules thereto. For further information with respect to the Company and
the Common Stock offered hereby, reference is made to the Registration Statement
and the exhibits and schedules filed therewith. Statements contained in this
Prospectus regarding the contents of any contract or any other document referred
to are not necessarily complete, and in each instance reference is made to the
copy of such contract or other document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission, each statement being qualified
in all respects by such reference. The Registration Statement may be inspected
without charge at the offices of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and copies of all or any part thereof may be obtained
from such office upon the payment of the fees prescribed by the Commission.
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TABLE OF CONTENTS
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PAGE
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AVAILABLE INFORMATION 2
ADDITIONAL INFORMATION 2
RISK FACTORS 4
THE COMPANY 8
SELLING STOCKHOLDERS 8
PLAN OF DISTRIBUTION 8
INFORMATION INCORPORATED BY REFERENCE 9
INTERESTS OF NAMED EXPERTS AND COUNSEL 9
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RISK FACTORS
In addition to reviewing the Company's Annual Report on Form_10-K for
the year ended December_31, 1995, the other documents incorporated herein by
reference and the other information in this prospectus, the following factors
should be considered carefully in evaluating the Company and its business
before purchasing the Common Stock offered hereby:
Inherent Risk of Investing in Equity Securities. The Company's future
operating results may vary substantially from period to period. The price of
the Company's Common Stock will fluctuate in the future; and an investment in
the Company's Common Stock is subject to a variety of risks, including but not
limited to the specific risks identified below. The results of operations for
any period are not necessarily indicative of results for the entire fiscal year
or any other future period. Expectations, forecasts and projections by the
Company or others are by nature forward-looking statements and future results
can not be guaranteed. Forward-looking statements that were true at the time
made may ultimately prove to be incorrect or false. Inevitably some investors
in the Company's securities will experience gains while others will experience
losses depending on the prices at which they purchase and sell securities.
Prospective and existing investors are strongly urged to carefully consider the
various cautionary statements and risks set forth in this Prospectus.
Fluctuations in Quarterly Results. The Company's future
operating results may vary substantially from period to period. The timing and
amount of the Company's license fee revenues are subject to a number of factors
that make estimation of revenues and operating results prior to the end of a
quarter extremely uncertain. The Company has operated historically with little
or no backlog and, as a result, license fees in any quarter are dependent on
orders booked and shipped in that quarter. Sybase has experienced a seasonal
pattern of license fee decline between the fourth quarter and the succeeding
first quarter contributing to lower total revenues and operating earnings in
the first quarter compared to the prior fourth quarter. Sybase currently
anticipates that revenues and earnings in the first quarter of 1997 will be
lower than in the fourth quarter of 1996. In addition, the timing of closing of
large license agreements increases the risk of quarter-to- quarter fluctuations
and the uncertainty of estimating quarterly operating results. The Company has
experienced a pattern of recording 50_percent to 70_percent of its quarterly
revenues in the third month of the quarter, with a concentration of such
revenues in the last week or two weeks of that third month. The Company's
operating expenses are based on projected annual and quarterly revenue levels
and are incurred approximately ratably throughout each quarter. As a result,
if projected revenues are not realized in the expected period, the Company's
operating results for that period would be adversely affected and could result
in an operating loss, as occurred in the first and second quarters of 1996.
Failure to achieve revenue, earnings, and other operating and financial results
as forecast or anticipated by brokerage firm and industry analysts has in the
past resulted, and could in the future result, in an immediate and adverse
effect on the market price of the Company's common stock. The Company's rate of
year-over-year growth slowed significantly in the preceding six quarters
compared to the year earlier periods. The Company may not achieve in the
future the relatively high rates of growth experienced by the Company in 1991
through 1994 or the rates of growth projected for the software markets in which
Sybase competes.
Volatility of the Company's Stock Price. The market for the Company's
stock is highly volatile. The trading price of the Company's common stock
fluctuated widely in 1995 and 1996 and may in the future continue to be subject
to wide fluctuations in response to quarterly variations in operating and
financial results, announcements of technological innovations, new products, or
customer contracts won by the Company or its competitors, changes in prices of
the Company's or its competitors' products and services, changes in product
mix, changes in the Company's revenue and revenue growth rates for the Company
as a whole or for individual geographic areas, business units, products or
product categories, as well as other events or factors. Statements or changes
in opinions, ratings or earnings estimates made by brokerage firms and industry
analysts relating to the market in which the Company does business, the
Company's competitors, or the Company or its products specifically, have
resulted, and could in the future result, in an immediate and adverse effect on
the market price of the Company's Common Stock. In particular, due to a
variety of factors, the Company's stock price declined significantly during
the third quarter of 1994, the second quarter of 1995 and the first quarter of
1996. In addition, the stock market has from time to time experienced extreme
price and volume fluctuations that have particularly affected the market price
for many high-technology companies and which often have been unrelated to the
operating performance of these companies.
Competition. The market for the Company's software products and
services is extremely competitive and characterized by dynamic customer
demands, rapid technological and marketplace changes, and frequent product
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enhancements and new product introductions. The Company competes with a number
of companies, including Oracle Corporation, Informix Corporation, Microsoft
Corporation, IBM Corporation, and Computer Associates, Inc. Many of the
Company's competitors and potential competitors have significantly greater
financial, technical, sales and marketing resources and a larger installed base
than the Company. Each of Informix, IBM, Microsoft and Oracle has announced
the development of enhanced versions of their principal database products that
are intended to improve the performance or expand the capabilities of their
existing products. New or enhanced products introduced by existing or future
competitors could increase the competition faced by the Company's products, and
result in greater price pressure on certain of the Company's database products,
especially to the extent that market acceptance for personal computer oriented
technologies increases. A failure by the Company to compete successfully with
its existing competitors or with new competitors could have a material adverse
effect on the Company's business and results of operations and on the market
price of the Company's Common Stock.
Existing and future competition or changes by the Company in its
product offerings or product pricing structure could result in an immediate
reduction in the prices of the Company's products. The Company introduced
changes in its pricing and licensing structure in the first quarter of 1996
that increased the prices for certain products or configurations, and reduced
the prices for other products and configurations. The Company will introduce
price and licensing changes from time to time in the future. If recently
implemented or future changes in the Company's products, pricing structure or
existing or future competition, for example from Microsoft, were to result in
significant revenue declines, the Company's business and financial results
would be adversely affected.
Technological Change and New Products. The market for the Company's
products and services is characterized by dynamic customer demands, rapid
technological change and frequent new product introductions. The Company's
future results will depend in part on its ability to enhance its existing
products and to introduce new products, on a timely and cost-effective basis,
that meet dynamic customer requirements. Customer requirements for products
can rapidly change as a result of innovations or changes within the computer
hardware and software industries. For example, the widespread use of the
Internet is rapidly giving rise to new customer requirements as well as new
methods and practices of selling, marketing and distributing products and
services. Sybase's future results will depend in part on its success in
developing new products, making generally available products that have been
previously announced, enhancing its existing products and adapting its existing
products to changing customer requirements, and ultimately and, ultimately, on
the market acceptance received by such new or enhanced products. The Company
has announced the development and anticipated availability dates of several
products. For example, a rapid application development tool for Java
development. The Company currently plans to commence commercial shipment of
this product in 1997. The Company has experienced delays in introducing some
new products in the past. For example, the commercial shipment of Sybase IQ
which became commercially available in February 1996 was previously planned
for the second half of 1995. Unanticipated delays in product availability
schedules could result from various factors including development or testing
difficulties, feature changes, software errors, shortages in appropriately
skilled software engineers and project management problems. Delays in the
scheduled availability of these or other products, a lack of or decrease in
market acceptance of new or enhanced products, particularly SQL Server 11 which
became commercially available in December 1995 and PowerBuilder 5.0 which
became commercially available in June 1996, or the Company's failure to
accurately anticipate customer demand or meet customer performance requirements
or to anticipate competitive products and developments could have a material
adverse effect on the Company's business and financial results. New products
or new versions of existing products may, despite testing, contain undetected
errors or bugs that will delay the introduction or adversely affect commercial
acceptance of such products or give rise to warranty or other customer claims,
which could, in turn, adversely affect the Company's financial results.
Reorganization and Restructuring. The Company from time to time may
reorganize various organizations within the corporation. Commencing in late
1995 and continuing throughout 1996 the Company implemented a variety of
changes to the sales organization, including a new sales model, changes to
sales compensation programs and an increased focus on sales through indirect
channels. Although such changes are intended to enhance overall revenues, such
changes could, in the short-run, materially and adversely affect the sales
process and revenues. For example, the Company believes that these changes may
have contributed in part to the lower than expected revenues in the first two
quarters of 1996. In the second quarter of 1996, the Company announced several
other management and organizational changes, including changes in the senior
management of the sales and marketing organizations. In the third quarter of
1996, Mitchell Kertzman succeeded Mark Hoffman as the Company's President and
Chief Executive Officer, with Mr. Hoffman continuing as the Company's Chairman
of the Board. Also in the third quarter of 1996, Jack Acosta became the
Company's Chief Financial Officer and David Litwack became Executive Vice
President of Products. The Company may make other management and organization
changes in the future. Organizational and management changes are intended to
enhance productivity and competitiveness. However, such changes may not
produce the desired results, and could materially adversely affect
productivity, expenses and
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revenues. During the third quarter of 1996 the Company incurred a restructuring
charge of approximately $49.2 million. The Company will continue to evaluate
its business, products and results of operations and, accordingly, the Company
may incur restructuring charges sometime in the future.
Interoperability and Compatability. Sybase's results will also depend
increasingly on the ability of its products to interoperate and perform well
with existing and future leading, industry-standard application software
products intended to be used in connection with relational database management
systems. Failure to meet existing or future interoperability and performance
requirements of certain independent vendors marketing such applications in a
timely manner has in the past and could in the future adversely affect the
market for Sybase's products. Certain leading applications will not be
interoperable with Sybase relational database management systems ("RDBMSs")
until certain features are added to the Company's RDBMS and others may never be
available on Sybase's RDBMS. In addition, the Company's application
development tools, database design tools and certain connectivity products are
designed for use with RDBMSs offered by the Company's competitors. Vendors of
non-Sybase RDBMSs and related products may become less willing in the future to
provide the Company with access to products, technical information and
marketing and sales support. If existing and potential customers of the
Company who use non-Sybase RDBMSs refrain from purchasing such products due to
concerns that over time the development, quality, and support of products for
non-Sybase RDBMSs will diminish, the Company's business, results of operations
and financial condition could be materially and adversely affected.
Customer Perception and Commercial Acceptance. Commercial acceptance
of the Company's products and services could be adversely affected by critical
or negative statements or reports by brokerage firms, industry and financial
analysts, and industry periodicals concerning the Company, its products,
business, or competitors, or by the advertising or marketing efforts of
competitors or other factors that could affect customer perception, such as the
criticism of the scalability of the Company's SQL Server 10 database product
experienced in 1995. In addition, customer perception of Sybase and its
products could be adversely affected by financial results reported for the 1995
and 1996 fiscal years and by press reports related thereto.
International Operations. Approximately 32%, 38% and 39% of the
Company's total revenues for years ended December 31, 1994, 1995 and 1996,
respectively, were from international operations. Several of the Company's
international subsidiaries have been only recently acquired or formed. In
addition there have been several management and organizational changes within
the international operations. International revenues, in absolute dollars and
as a percentage of total revenues, may fluctuate in part due to the rapid
growth and, in some cases, the relative immaturity of international
organizations. If international revenues decrease, and sales from North
American operations are insufficient to compensate for such decrease, the
Company's total revenues will decrease, thereby adversely affecting net income.
The Company's operations and financial results could be significantly affected
by factors associated with international operations such as changes in foreign
currency exchange rates and uncertainties relative to regional economic
circumstances, political instability in emerging markets and difficulties in
staffing and managing foreign operations, as well as by other risks associated
with international activities.
Integration of Acquired Companies. In 1994 and 1995 the Company
acquired Powersoft Corporation ("Powersoft") and several other companies. In
February 1996, the Company merged with Visual Components, Inc. In February 1997,
the Company acquired PNET. The Company may acquire other distributors,
companies, products, or technologies in the future. The achievement of the
desired benefits of these and future acquisitions will depend in part upon
whether the integration of the acquired businesses is achieved in an efficient
and effective manner. The successful combination of businesses will require,
among other things, integration of the companies' related product offerings and
coordination of their sales, marketing and research and development efforts. The
difficulties of such coordination may be increased by the geographic distance
between separate organizations. The Company may be unable to integrate
effectively these or future acquired businesses, and may not obtain the
anticipated or desired benefits of such acquisitions. Such acquisitions may
result in costs or liabilities that could adversely effect the Company's results
of operations and financial condition. In addition, acquisitions or changes in
business or market conditions may cause the Company to revise its plans, which
could result in unplanned expenses or a loss of anticipated benefits from past
investments.
Key Personnel. The Company's ability to achieve its future revenues
and earnings will depend in part on the ability of its officers and key
personnel to manage growth, costs and expenses successfully through the
implementation of appropriate management systems and controls. Failure to
effectively implement or maintain such systems and controls could adversely
affect the Company's business and results of operations. The success of the
Company also depends in part on its ability to attract and retain qualified
technical, managerial, sales and marketing personnel. The competition for such
personnel is intense in the software industry, and Sybase believes, has
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increased substantially in recent years. In particular, there have been
several changes in 1995, 1996 and 1997 to the Company's executive management
team. Changes in management, the Company's recent financial performance and a
reduction in the overall number of Sybase employees made in the third quarter
of 1996 could cause an increase in the amount of employee turnover. The
failure to effectively recruit, train and retain qualified personnel or high
rates of employee turnover, particularly among engineering or sales staff,
could adversely affect the Company's product development efforts, product sales
and other aspects of the Company's operations and results. During 1996, the
software industry generally, and Sybase specifically, experienced higher than
historical rates of employee turnover.
Limitations on Protection of Intellectual Property and Proprietary
Rights. The Company relies on a combination of trade secret, copyright and
trademark laws and contractual provisions to protect its proprietary rights in
its software products. These protections may not be adequate in certain
circumstances. Competitors may independently develop technologies that are
substantially equivalent or superior to the Company's technology. In addition,
copyright and trade secret protection for the Company's products may be
unavailable or unreliable in certain foreign countries. As the number of
software products in the industry and the number of software patents increase,
the Company believes that software developers may become increasingly subject
to infringement claims. Third parties have in the past asserted and may in the
future assert that their patents or other proprietary rights are violated by
products offered or in development by the Company. Any such claims, with or
without merit, can be time consuming and expensive to defend or settle, and
could have an adverse effect on the Company's business and results of
operations. While the Company believes that its products do not infringe other
parties' patents and proprietary rights, it cannot be certain that its products
are not doing so. Infringement of valid third party patents and proprietary
rights could have an adverse effect on the Company's business and results of
operations. With respect to an increasing number of products, the Company
relies on "break the seal" licenses not signed by the licensee to protect its
proprietary rights. "Break the seal" licenses may be unenforceable under the
laws of certain jurisdictions.
Order Processing and Shipping. Sybase currently enters most of its
North American customer orders in its Burlington, Massachusetts operations
center and ships all of its products in North America (other than its
Powersoft(R) products) from its Emeryville, California distribution facility.
Because of the pattern of recording a high percentage of quarterly revenues
within the last week or two weeks of each quarter, the closure or inoperability
of one or both of these facilities during such weeks due to natural calamity or
due to a systems or power failure could have a material adverse effect on the
Company's ability to record revenues for such quarter.
Litigation. Following the Company's announcement on April 3, 1995 of
its preliminary results for the first fiscal quarter ended March 31, 1995,
several class action lawsuits were filed against the Company and certain of its
officers in the U.S. District Court, Northern District of California. The
complaints are similar to one another and allege violations of federal and
state securities laws and request unspecified monetary damages. These actions
have been consolidated, a consolidated amended class action complaint was
served on August 7, 1995, and the parties are in pretrial discovery.
Management believes that the claims contained in the consolidated amended
complaint are without merit and intends to defend against the claims
vigorously. In the opinion of management, resolution of this litigation is not
expected to have a material adverse effect on the financial position of the
Company. However, depending on the amount and timing, an unfavorable
resolution of this matter could materially affect the Company's future results
of operations or cash flows in a particular period. The Company is also a
party to various legal disputes and proceedings arising from the ordinary
course of business activities. In the opinion of management, resolution of
these matters is not expected to have a material adverse effect on the
financial position of the Company. However, depending on the amount and
timing, an unfavorable resolution of some or all of these matters could
materially affect the Company's future results of operations or cash flows in a
particular period.
Effect of Antitakeover Provisions of Delaware Law; the Company's
Charter Documents and Preferred Shares Rights Agreement. The Company is
subject to the provisions of Section_203 of the Delaware General Corporation
Law, which has the effect of restricting changes in control of a company. The
Company's Board of Directors is divided into three classes, with each class
standing for election once every three years. In addition, the Company's Board
of Directors has authority to issue up to 8,000,000 shares of preferred stock
and to fix the rights, preferences, privileges and restrictions, including
voting rights, of such shares without any further vote or action by the
stockholders. The Company also has a Preferred Shares Rights Agreement that
provides for the issuance of rights which upon the occurrence of certain events
would result in significant dilution to the Company's Common Stock held by a
bidder for the Company. These and other provisions of Delaware Law applicable
to the Company and the Company's charter documents may
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have the effect of delaying, deterring, or preventing changes in control or
management of the Company. As a result, the Rights may discourage potential
acquirors who might desire to acquire the Company without the consent of the
Board of Directors. The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the Rights.
THE COMPANY
Sybase, Inc. was incorporated in California in 1984 and became a
Delaware corporation in July 1991. The Company's principal executive offices
are located at 6475 Christie Avenue, Emeryville, California 94608 and its
telephone number at that address is (510)_922-3500. The Common Stock of the
Company is traded on the Nasdaq National Market and is quoted under the symbol
SYBS.
SELLING STOCKHOLDERS
The following table shows (i) the name of each Selling Stockholder and
his or her position with the Company, (ii) the number of shares of Common Stock
beneficially owned prior to the Offering, (iii) the number of shares of Common
Stock to be sold by him or it pursuant to this Prospectus and (iv) the number
of shares beneficially owned after the Offering.
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Shares Shares
Beneficially Shares to be Beneficially
Owned Prior to Sold in the Owned After
Name and Position Offering Offering(1) the Offering
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Jon Smirl, Consultant 675,000 675,000 0
Tyler Brooks, Employee 75,000 75,000 0
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(1) The Shares to be Sold in the Offering are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act.
PLAN OF DISTRIBUTION
The Company has been advised by the Selling Stockholders that they and
any person receiving shares from the Selling Stockholders in the form of a bona
fide gift or distribution to a limited partner of a Selling Stockholder (a
"Donee") intend to sell all or a portion of the shares offered hereby from time
to time in the over-the-counter market and that sales will be made at prices
prevailing at the times of such sales. The Selling Stockholders and any Donee
may also make private sales directly or through a broker or brokers, who may
act as agent or as principal. The Selling Stockholders or any Donee may also
pledge the shares registered hereunder to a broker or dealer and, upon a
default, the broker or dealer may effect sales of the pledged shares pursuant
to this prospectus. In connection with any sales, the Selling Stockholders,
any Donee and any brokers participating in such sales may be deemed to be
underwriters within the meaning of the Securities Act. The Company will
receive no part of the proceeds of sales made hereunder.
Any broker-dealer participating in such transactions as agent may
receive commissions from the Selling Stockholders and any Donee (and, if they
act as agent for the purchaser of such shares, from such purchaser). Usual and
customary brokerage fees will be paid by the Selling Stockholders and any
Donee. Broker-dealers may agree with the Selling Stockholders to sell a
specified number of shares at a stipulated price per share, and, to the extent
such a broker-dealer is unable to do so acting as agent for the Selling
Stockholders and any Donee, to purchase as principal any unsold shares at the
price required to fulfill the broker-dealer commitment to the Selling
Stockholders and any Donee. Broker-dealers who acquire shares as principal may
thereafter resell such shares from time to time in transactions (which may
involve crosses and block transactions and which may involve sales to and
through other broker-dealers, including transactions of the nature described
above) in the over-the-counter market, in negotiated transactions or otherwise
at market prices prevailing at the time of sale or at negotiated prices, and in
connection with such resales may pay to or receive from the purchasers of such
shares commissions computed as described above.
8
<PAGE> 10
The Company has advised the Selling Stockholders that the
anti-manipulative Rules 10b-6 and 10b-7 under the Exchange Act, may apply to
their sales in the market, has furnished each Selling Stockholder with a copy
of these Rules and has informed them of the need for delivery of copies of this
Prospectus. The Selling Stockholders or any Donee may indemnify any
broker-dealer that participates in transactions involving the sale of the
shares against certain liabilities, including liabilities arising under the
Securities Act. Any commissions paid or any discounts or concessions allowed
to any such broker-dealers, and any profits received on the resale of such
shares, may be deemed to be underwriting discounts and commissions under the
Securities Act if any such broker-dealers purchase shares as principal.
Any securities covered by this Prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act may be sold under that Rule
rather than pursuant to this Prospectus.
There can be no assurance that any of the Selling Stockholders or any
Donee will sell any or all of the shares of Common Stock offered by them
hereunder.
INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed with the
Securities and Exchange Commission are hereby incorporated by reference in this
Prospectus:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, filed pursuant to Section 13 of the Exchange Act.
(2) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, June 30 and September 30, 1996 filed pursuant to
Section 13 of the Exchange Act.
(3) The description of the Company's Common Stock contained in the
Company's Form 8-A (File No. 0-19395), as amended, as declared
effective by the Commission on August 13, 1991.
(4) The description of the Company's Preferred Share Purchase Plan and
Series A Participating Preferred Stock filed as Exhibits 1, 2 and 3
to the Company's Form 8-A/A filed with the Commission on November 14,
1996.
All documents filed by the Company pursuant to Section_13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of securities contemplated hereby shall be
deemed to be incorporated by reference in this Prospectus or any Prospectus
Supplement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated by reference or deemed to be
incorporated by reference in this Prospectus or any Prospectus Supplement shall
be deemed to be modified or superseded for all purposes of this Prospectus or
such Prospectus Supplement to the extent that a statement contained herein,
therein or in any subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein or in such Prospectus Supplement
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 Prospectus or any Prospectus Supplement.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any and all of the documents referred to above which have
been or may be incorporated in this Prospectus by reference (other than
exhibits to such documents, unless such exhibits are specifically incorporated
by reference therein). Requests for such copies should be directed to:
Investor Relations, Sybase, Inc., 6475 Christie Avenue, Emeryville, California
94608; telephone number (510) 922-3500.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Counsel for the Company, Wilson Sonsini Goodrich_& Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304-
1050, has rendered an opinion to the effect that the Common Stock offered
hereby will, upon issuance, be duly and validly issued, fully paid and
non-assessable. Certain members of Wilson Sonsini Goodrich & Rosati, P.C.,
beneficially own approximately 8,400 shares of the Company's Common Stock.
9
<PAGE> 11
SYBASE, INC.
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item Number
- -----------
<TABLE>
<S> <C> <C>
Item 14 Other Expenses of Issuance and Distribution.
-------------------------------------------
Registration fee--Securities and
Exchange Commission $ 3,637
NASD fees $15,000
Accounting fees $ 4,000
Legal fees $ 2,500
Miscellaneous $ 863
-------
Total $26,000
Item 15 Indemnification of Directors and Officers.
-----------------------------------------
</TABLE>
The Company has adopted provisions in its Certificate of Incorporation that
limit the liability of its directors and enable the Company to broaden the
indemnification provided to its directors and officers. As permitted by the
Delaware General Corporation Law, directors will not be liable for monetary
damages arising from a breach of their fiduciary duty as directors in certain
circumstances. Such limitation does not affect liability of a director to the
Company or its shareholders for (i)_breaches of the director's duty of loyalty,
(ii)_acts or omissions not in good faith or involving intentional misconduct or
knowing violations of law, (iii)_the payment of unlawful dividends or unlawful
stock repurchases or redemptions or (iv)_transactions in which the director
received an improper personal benefit. Such limitation of liability does not
affect the availability of equitable remedies such as injunctive relief or
rescission.
The Company's Bylaws provide that the Company shall indemnify its directors
and officers to the maximum extent permitted by Delaware law, including
circumstances in which indemnification is otherwise discretionary under
Delaware law. The Company has also entered into indemnification agreements
with its officers and directors containing provisions which are in some
respects broader than the specific indemnification provisions contained in the
Delaware General Corporation Law. The Indemnification Agreements may require
the Company, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal proceeding, had no reasonable cause
to believe their conduct was unlawful, to advance their expenses incurred as a
result of any proceeding against them as to which they could be indemnified,
and to obtain directors' and officers' insurance if available on reasonable
terms.
The Company understands that the staff of the Securities and Exchange
Commission is of the opinion that statutory, charter and contractual provisions
as are described above have no effect on claims arising under the federal
securities laws. The Company is not aware of any material threatened or
ongoing litigation or proceeding which may result in a claim for such
indemnification.
Item 16 Exhibits.
--------
<TABLE>
<CAPTION>
Exhibit
Number
--------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Independent Accountants
23.3 Consent of Wilson Sonsini Goodrich & Rosati (Included in Exhibit 5.1)
</TABLE>
II-1
<PAGE> 12
Item 17 Undertakings.
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 that is incorporated by reference in this 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. The undersigned
registrant also undertakes to include any material information with respect to
the plan of distribution net previously disclosed in this registration
statement or any material change to such information in the registration
statement and to remove from registration by means of a post-effective
amendment any of the securities being registered hereby which remain unsold at
the termination of the offering.
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 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 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.
II-2
<PAGE> 13
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-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Emeryville, State of California, on February
27, 1997.
SYBASE, INC.
By: /s/ MITCHELL E. KERTZMAN
-----------------------------------
Mitchell E. Kertzman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mitchell E. Kertzman, Jack L. Acosta and
Laurie B. Keating, jointly and severally, his attorneys-in-fact, each with the
power of substitution, for him in any and all capacities, to sign any amendment
to this Registration Statement on Form S-3 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.
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ MITCHELL E. KERTZMAN President, Chief Executive Officer February 27, 1997
- ------------------------- (Principal Executive Officer) and
(Mitchell E. Kertzman) Director
/s/ ROBERT S. EPSTEIN Executive Vice President and February 27, 1997
- ------------------------- Director
(Robert S. Epstein)
/s/ JACK L. ACOSTA Senior Vice President, Finance and February 27, 1997
- ------------------------- Chief Financial Officer (Principal
(Jack L. Acosta) Financial Officer)
/s/ PETER F. PERVERE Vice President and February 27, 1997
- ------------------------- Corporate Controller
(Peter F. Pervere) (Principal Accounting Officer)
/s/ MARK B. HOFFMAN Chairman of the Board February 27, 1997
- -------------------------
(Mark B. Hoffman)
/s/ RICHARD C. ALBERDING Director February 27, 1997
- -------------------------
(Richard C. Alberding)
/s/ L. WILLIAM KRAUSE Director February 27, 1997
- -------------------------
(L. William Krause)
</TABLE>
II-3
<PAGE> 14
<TABLE>
<S> <C> <C>
/s/ DAVID E. LIDDLE Director February 27, 1997
- -------------------------
(David E. Liddle)
/s/ ALAN B. SALISBURY Director February 27, 1997
- -------------------------
(Alan B. Salisbury)
/s/ ROBERT P. WAYMAN Director February 27, 1997
- -------------------------
(Robert P. Wayman)
/s/ JEFFREY T. WEBBER Director February 27, 1997
- -------------------------
(Jeffrey T. Webber)
</TABLE>
II-4
<PAGE> 15
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page
- ------ ----------- ----
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation II-6
23.1 Consent of Ernst & Young LLP, Independent Auditors II-7
23.2 Consent of Independent Accountants II-8
23.3 Consent of Wilson Sonsini Goodrich & Rosati (Included in Exhibit 5.1)
</TABLE>
II-5
<PAGE> 1
Exhibit 5.1
February 27, 1997
Sybase, Inc.
6475 Christie Avenue
Emeryville, CA 94608
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-3 to be filed by
you with the Securities and Exchange Commission on or about February 28, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 750,000 shares of your Common Stock (the
"Shares") to be sold by certain of your stockholders (the "Selling
Stockholders"). As your counsel, we have examined the proceedings taken and
are familiar with the proceedings proposed to be taken by you in connection
with the sale of the Shares by the Selling Stockholders in the manner set forth
in the Registration Statement in the section entitled "Plan of Distribution."
It is our opinion that the Shares to be sold in the manner referred to
in the Registration Statement are legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and further consent to the use of our name wherever
appearing in the Registration Statement, including any Prospectus constituting
a part hereof, and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
II-6
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-3) and related Prospectus of Sybase, Inc. for the registration
of 750,000 shares of its Common Stock of our report dated January 17, 1996 with
respect to the consolidated financial statements of Sybase, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1995, and the related
financial statement schedule included therein, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Francisco, California
February 27, 1997
II-7
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Sybase, Inc. on Form S-3 registering the resale of shares issued by Sybase,
Inc. in the acquisition of Purchase Net, Inc. of our report dated February 14,
1995, on our audits of the consolidated financial statements and financial
statements schedule of Powersoft Corporation as of December 31, 1994 and 1993
and for the three years in the period ended December 31, 1994, which report is
included in the Form 10-K of Sybase, Inc.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
February 27, 1997
II-8
