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As filed with the Securities and Exchange Commission on February 18, 1997
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYBASE, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 94-2951005
(State of incorporation) (IRS Employer Identification No.)
6475 Christie Avenue
Emeryville, California 94608
(Address of Principal Executive Offices)
1996 STOCK PLAN
1992 DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
Mitchell L. Gaynor
Vice President, General Counsel and Secretary
SYBASE, INC.
6475 Christie Avenue
Emeryville, California 94608
(Name and address of agent for service)
(510) 922-3500
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Per Aggregate Offering Registration
be Registered Registered(1) Share (2) Price (2) Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value
- - To be issued upon exercise of options
under 1996 Stock Plan 2,977,000 $17.50 $ 52,097,500 $ 15,787
- - To be issued upon exercise of options
under the 1992 Director Stock Option Plan 300,000 $17.50 $ 5,250,000 $ 1,591
TOTAL 3,277,000 $17.50 $ 57,347,500 $ 17,378
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(1) A total of 700,000 shares have been reserved for issuance under the 1992
Director Stock Option Plan (as amended effective February 1997); 400,000
shares were previously registered under Form S-8 Registration Statement
File No. 33-66180 and Form S-8 Registration Statement File No. 33-49754.
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c), on the basis of average of the high and low sale
prices of the Common Stock as reported on the NASDAQ National Market System
on February 13, 1997.
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SYBASE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
1 The Company's Annual Report on Form 10-K for fiscal year ended
December 31, 1995, filed pursuant to Section 13 of the Exchange Act of 1934, as
amended (the "Exchange Act").
2. The Company's definitive proxy statement dated April 5, 1996, in
connection with the Company's Annual Meeting of Stockholders held May 21, 1996,
filed pursuant to Section 14 of the Exchange Act.
3. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996, filed pursuant to Section
13 of the Exchange Act.
4. 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.
5. 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 Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be 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.
Counsel for the Company, Wilson, Sonsini, Goodrich & Rosati,
Professional Corporation, 650 Page Mill Road, Palo Alto, California 94304, has
rendered an opinion to the effect that the Common Stock offered hereby: (i)
will, when issued in accordance with the Registrant's 1996 Stock Plan, be
legally and validly issued, fully paid and non-assessable with respect to those
shares subject to issuance under such plan; and (ii) will, when issued in
accordance with the Registrant's 1992 Director Stock Option Plan, as amended, be
legally and validly issued, fully paid and non-assessable with respect to those
shares subject to issuance under such plan. Certain members of Wilson, Sonsini,
Goodrich & Rosati, Professional Corporation rendering advice to the Company with
respect to this Registration Statement beneficially own approximately 8,400
shares of the Registrant's Common Stock.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation law authorizes a
court to award, or a corporation's Board of Directors to grant, indemnity to
directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933
(the "Securities Act"). Article TENTH of the Company's Certificate of
Incorporation and Article VI of the Bylaws of the Company provide for the
indemnification of certain agents to the maximum extent permitted by the
Delaware General Corporation Law. Persons covered by these indemnification
provisions include current and former directors, officers, employees and other
agents of the Company, as well as persons who serve at the request of the
Company as directors, officers, employees or agents of another enterprise. In
addition, the Company has entered into agreements with its officers and
directors which require the Company to indemnify its officers and directors to
the maximum extent allowed under Delaware law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 1996 Stock Plan. Incorporated by reference to Exhibit 10.20
of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995 (filed on March 29, 1996).
4.2 1992 Director Stock Option Plan, as amended. Incorporated
by reference to Exhibit 10.5 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1995
(filed on March 29, 1996).
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Independent Accountants.
23.3 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 4).
</TABLE>
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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(2) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Emeryville, State of California, on February 14,
1997.
SYBASE, INC.
By: 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-8 and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
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
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<S> <C> <C>
MITCHELL E. KERTZMAN President, Chief Executive February 14, 1997
- ---------------------------- Officer (Principal Executive
(Mitchell E. Kertzman) Officer) and Director
JACK L. ACOSTA Senior Vice President, Finance and February 14, 1997
- ---------------- Chief Financial Officer (Principal
(Jack L. Acosta) Financial Officer)
ROBERT S. EPSTEIN Executive Vice President and February 14, 1997
- ----------------------------
(Robert S. Epstein) Director
PETER F. PERVERE Vice President and February 14, 1997
- ---------------------------- Corporate Controller
(Peter F. Pervere) (Principal Accounting Officer)
MARK B. HOFFMAN Chairman of the Board and Director February 14, 1997
- ----------------------------
(Mark B. Hoffman)
RICHARD C. ALBERDING Director February 14, 1997
- ----------------------------
(Richard C. Alberding)
L. WILLIAM KRAUSE Director February 14, 1997
- ----------------------------
(L. William Krause)
</TABLE>
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<TABLE>
<S> <C> <C>
DAVID E. LIDDLE Director February 14, 1997
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(David E. Liddle)
ALAN B. SALISBURY Director February 14, 1997
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(Alan B. Salisbury)
ROBERT P. WAYMAN Director February 14, 1997
- ----------------------------
(Robert P. Wayman)
JEFFREY T. WEBBER Director February 14, 1997
- ----------------------------
(Jeffrey T. Webber)
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 1996 Stock Plan. Incorporated by reference to Exhibit 10.20
of the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995 (filed on March 29, 1996).
4.2 1992 Director Stock Option Plan, as amended. Incorporated
by reference to Exhibit 10.5 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1995
(filed on March 29, 1996).
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Independent Accountants.
23.3 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 4).
</TABLE>
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EXHIBIT 5.1
February 14, 1997
Sybase, Inc.
6475 Christie Avenue
Emeryville, CA 94608
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on or about February 18, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 2,977,000 shares of your Common Stock
under the 1996 Stock Plan and of 300,000 shares of your Common Stock under the
1992 Director Stock Option Plan. Such shares of Common Stock are referred to
herein as the "Shares," and such plans are referred to herein as the "Plans." As
your counsel in connection with this transaction, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that, when issued and sold in the manner described in
the Plans and pursuant to the agreements which accompany each grant under the
Plan, the Shares will be 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 and any amendments thereto.
Very truly yours,
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) and related prospectus pertaining to the 1996 Stock Plan
and the 1992 Director Stock Option Plan of Sybase, Inc. 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
San Francisco, California
February 14, 1997
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Sybase, Inc. on Form S-8 to register additional shares under the 1996 Stock Plan
and 1992 Director Stock Option Plan, 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 14, 1997
