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As filed with the Securities and Exchange Commission on June 10, 1998
Registration No. 333-______
- --------------------------------------------------------------------------------
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
AMENDED AND RESTATED 1991 EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED 1991 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)
CALCULATION OF REGISTRATION FEE
<TABLE>
<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
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value
- - To be issued
under 1996 Stock Plan 2,500,000 $7.375 $18,437,500 $5,439.06
- - To be issued
under the Amended and Restated 1991 1,500,000 $7.375 $11,062,500 $3,263.44
Employee Stock Purchase Plan and
Amended and Restated 1991 Foreign
Subsidiary Employee Stock Purchase Plan
TOTAL 4,000,000 $7.375 $29,500,000 $8,702.50
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) A total of 7,927,000 shares have been reserved for issuance under the 1996
Stock Plan, 2,977,000 of which were previously registered under Form S-8
Registration Statement File No. 333-21935 and 2,450,000 of which were
previously registered under Form S-8 Registration Statement File No.
333-34881. A total of 7,500,000 shares have been reserved for issuance
under the Amended and Restated 1991 Employee Stock Purchase Plan and the
Amended and Restated 1991 Foreign Subsidiary Employee Stock Purchase
Plan, 6,000,000 of which were previously registered under Form S-8
Registration Statements File Nos. 33-94638, 33-81692, 33-66180, 33-42279
and 333- 34881.
(2) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c), on the basis of the average of the high and low
sale prices of the Common Stock as reported on the NASDAQ National Market
System on June 8, 1998.
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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, 1997 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 15, 1998, in
connection with the Company's Annual Meeting of Stockholders held May 27, 1998,
filed pursuant to Section 14 of the Exchange Act.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, 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; (ii) will, when issued in accordance
with the Registrant's Amended and Restated 1991 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 Amended and Restated 1991
Foreign Subsidiary 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. Neither Wilson Sonsini
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Goodrich & Rosati, Professional Corporation, nor any members thereof
participating in the preparation of this Registration Statement, beneficially
own any 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
-------- -----------
4.1 1996 Stock Plan, as amended March 13, 1998. Incorporated by
reference to Exhibit 10.20 of the Registrant's Annual Report on Form
10-K for the year ended December 31, 1997 (filed on March 31, 1998).
4.2 Amended and Restated 1991 Employee Stock Purchase Plan, as amended
March 13, 1998, and Amended and Restated 1991 Foreign Subsidiary
Employee Stock Purchase Plan, as amended March 13, 1998.
Incorporated by reference to Exhibit 10.2 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997 (filed on
March 31, 1998).
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 counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 4).
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.
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(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 June 9, 1998.
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/S/ MITCHELL E. KERTZMAN Chairman of the Board (Principal Executive June 9, 1998
- ------------------------ Officer), Chief Executive Officer and
(Mitchell E. Kertzman) Director
/S/ JOHN CHEN President, Chief Executive Officer June 9, 1998
- ------------- and Directir
(John Chen)
/S/ JACK L. ACOSTA Executive Vice President, Finance and June 9, 1998
- ------------------ Chief Financial Officer (Principal
(Jack L. Acosta) Financial Officer)
/S/ ROBERT EPSTEIN Executive Vice President and June 9, 1998
- ------------------ Director
(Robert S. Epstein)
/S/ PIETER VAN DER VORST Vice President and June 9, 1998
- ------------------------ Corporate Controller
(Pieter Van der Vorst) (Principal Accounting Officer)
/S/ RICHARD C. ALBERDING Director June 9, 1998
- ------------------------
(Richard C. Alberding)
/S/ L. WILLIAM KRAUSE Director June 9, 1998
- ---------------------
(L. William Krause)
</TABLE>
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/S/ ALAN B. SALISBURY Director June 9, 1998
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(Alan B. Salisbury)
/S/ ROBERT WAYMAN Director June 9, 1998
- -----------------
(Robert P. Wayman)
/S/ JEFFREY T. WEBBER Director June 9, 1998
- ---------------------
(Jeffrey T. Webber)
</TABLE>
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EXHIBIT INDEX
Exhibit
Number Description
- -------- -----------
4.1 1996 Stock Plan, as amended March 13, 1998. Incorporated by
reference to Exhibit 10.20 of the Registrant's Annual Report on Form
10-K for the year ended December 31, 1998 (filed on March 31, 1998).
4.2 Amended and Restated 1991 Employee Stock Purchase Plan, as amended
March 13, 1998, and Amended and Restated 1991 Foreign Subsidiary
Employee Stock Purchase Plan, as amended March 13, 1998.
Incorporated by reference to Exhibit 10.2 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1997 (filed on
March 31, 1998).
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 counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 4).
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EXHIBIT 5.1
June 10, 1998
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 June 10, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 2,500,000 shares of your Common Stock
under your 1996 Stock Plan and of 1,500,000 shares of your Common Stock under
the Amended and Restated 1991 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
Plans, 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, the
Amended and Restated 1991 Employee Stock Purchase Plan and the Amended and
Restated 1991 Foreign Subsidiary Employee Stock Purchase Plan of Sybase, Inc.
of our report dated January 28, 1998, except for Note Thirteen, as to which the
date is February 26, 1998, with respect to the consolidated financial
statements of Sybase, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1997, and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Francisco, California
June 10, 1998
