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As filed with the Securities and Exchange Commission on September 3, 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
1991 AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
1991 AMENDED AND RESTATED FOREIGN SUBSIDIARY
EMPLOYEE STOCK PURCHASE 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)
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CALCULATION OF REGISTRATION FEE
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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 2,450,000 $18.344 $44,942,800 $13,619.01
- - To be issued upon exercise of options
under the 1991 Amended and Restated
Employee Stock Purchase Plan and
the 1991 Amended and Restated
Foreign Subsidiary Employee
Stock Purchase Plan 1,300,000 $18.344 $23,847,200 $7,226.42
- - To be issued upon exercise of options
TOTAL 3,750,000 $18.344 $68,790,000 $20,845.43
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(1) A total of 5,427,000 shares have been reserved for issuance under the 1996
Stock Plan. 2,977,000 shares were previously registered under Form S-8
Registration Statement File No. 333-21935. A total of 6,000,000 shares
have been reserved for issuance under the 1991 Amended and Restated
Employee Stock Purchase Plan and the 1991 Amended and Restated Foreign
Subsidiary Employee Stock Purchase Plan, 4,700,000 of which were
previously registered under Form S-8 Registration Statements File Nos.
33-94638, 33-81692, 33-66180 and 33-42279.
(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 August 29, 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, 1996, 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 4, 1997, in
connection with the Company's Annual Meeting of Stockholders held May 20, 1997,
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, 1997 and June 30, 1997, 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 Plan 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; (ii) will, when issued in accordance
with the Registrant's 1991 Amended and Restated Employee Stock Purchase Plan, as
amended, be legally and validly issued, fully paid and non-assessable with
respect to those shares subject to issuance under such plan; and (iii) will,
when issued in accordance with the Registrant's 1991 Amended and Restated
Foreign Subsidiary Employee Stock Purchase Plan, 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 beneficially own approximately 8,400 shares of the
Registrant's Common Stock.
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.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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, 1996 (filed on
March 27, 1997).
4.2 1991 Amended and Restated Employee Stock Purchase
Plan, as amended effective January 21, 1997, and 1991
Amended and Restated Foreign Subsidiary Employee
Stock Purchase Plan, as amended effective January
21, 1997. Incorporated by reference to Exhibit 10.2
of the Registrant's Annual Report on Form 10-K for
the year ended December 31, 1996 (filed on March 27,
1997).
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 3).
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. 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 September 3,
1997.
SYBASE, INC.
By: /S/ MITCHELL E. KERTZMAN
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Mitchell E. Kertzman, Chairman of the
Board 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
Mitchell L. Gaynor, 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.
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Signature Title Date
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<S> <C> <C>
/S/ MITCHELL E. KERTZMAN Chief Executive Officer September 3, 1997
- --------------------------------- (Principal Executive Officer),
(Mitchell E. Kertzman) Chairman of the Board and
Director
/S/ JOHN CHEN President, Chief Operating Officer September 3, 1997
- --------------------------------- and Director
(John Chen)
/S/ JACK L. ACOSTA Senior Vice President, Finance and September 3, 1997
- --------------------------------- Chief Financial Officer (Principal
(Jack L. Acosta) Financial Officer)
/S/ ROBERT S. EPSTEIN Executive Vice President and September 3, 1997
- --------------------------------- Director
(Robert S. Epstein)
/S/ PIETER VANDER VORST Vice President, Tax and Corporate September 3, 1997
- --------------------------------- Accounting (Principal Accounting
(Pieter Vander Vorst) Officer)
/S/ RICHARD C. ALBERDING Director September 3, 1997
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(Richard C. Alberding)
/S/ L. WILLIAM KRAUSE Director September 3, 1997
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(L. William Krause)
/S/ DAVID E. LIDDLE Director September 3, 1997
- ---------------------------------
(David E. Liddle)
/S/ ALAN B. SALISBURY Director September 3, 1997
- ---------------------------------
(Alan B. Salisbury)
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<S> <C> <C>
/S/ ROBERY P. WAYMAN Director September 3, 1997
- ---------------------------------
(Robert P. Wayman)
/S/ JEFFREY T. WEBBER Director September 3, 1997
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(Jeffrey T. Webber)
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
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, 1996 (filed on March 27, 1997).
4.2 1991 Amended and Restated Employee Stock Purchase Plan, as
amended effective January 21, 1997 and 1991 Amended and
Restated Foreign Subsidiary Employee Stock Purchase Plan,
as amended effective January 21, 1997. Incorporated by
reference to Exhibit 10.2 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1996
(filed on March 27, 1997).
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 3).
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EXHIBIT 5.1
September 2, 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 September 3, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 2,450,000 shares of your Common Stock
under your 1996 Stock Plan and of 1,300,000 shares of your Common Stock under
the 1991 Amended and Restated Employee Stock Purchase Plan and 1991 Amended and
Restated Foreign Subsidiary Employee Stock Purchase 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 1991 Amended and Restated Employee Stock Purchase Plan and 1991 Amended
and Restated Foreign Subsidiary Employee Stock Purchase Plan of Sybase, Inc. of
our report dated January 23, 1997, except for Note Fourteen, as to which the
date is February 21, 1997, with respect to the consolidated financial statements
of Sybase, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1996, and the related financial statement schedule included
therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Francisco, California
September 2, 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 1991 Amended and Restated Employee Stock Purchase Plan and 1991 Amended and
Restated Foreign Subsidiary Employee Stock Purchase Plan, of our report dated
February 14, 1995, on our audits of the consolidated financial statements and
financial statement 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
September 2, 1997
