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As filed with the Securities and Exchange Commission on July 20, 1999
Registration No. _________
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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
AMENDED AND RESTATED 1991 EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED 1991 FOREIGN SUBSIDIARY EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Daniel R. Carl
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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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
under 1996 Stock Plan 1,800,000 $ 11.0625 $19,912,500 $ 5,536
- - To be issued
under the Amended and Restated 1991 2,300,000 $ 11.0625 $25,443,750 $ 7,073
Employee Stock Purchase Plan and
Amended and Restated 1991 Foreign
Subsidiary Employee Stock Purchase Plan
TOTAL 4,100,000 $ 11.0625 $45,356,250 $ 12,609
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
(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 July 14, 1999.
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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 the year ended
December 31, 1998 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 14, 1999, in
connection with the Company's Annual Meeting of Stockholders held May 27, 1999,
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, 1999, 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, 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
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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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Exhibit
Number Description
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<S> <C>
4.1 1996 Stock Plan, as amended March 26, 1999.
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 30,
1999).
4.2 Amended and Restated 1991 Employee Stock Purchase
Plan, as amended March 26, 1999, and Amended and
Restated 1991 Foreign Subsidiary Employee Stock
Purchase Plan, as amended March 26, 1999.
Incorporated by reference to Exhibit 10.2 of the
Registrant's Annual Report on Form 10-K for the
year ended December 31, 1998 (filed on March 30,
1999).
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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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.
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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 July 19, 1999.
SYBASE, INC.
By: /S/ JOHN S. CHEN
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John S. Chen, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John S. Chen, Pieter Van der Vorst and
Teresa D. Chuh, 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/ JOHN S. CHEN Chairman of the Board (Principal Executive July 19, 1999
- --------------------------- Officer), President, Chief Executive Officer
(John S. Chen) and Director
/S/ PIETER VAN DER VORST Vice President July 19, 1999
- --------------------------- and Chief Financial Officer (Principal
(Pieter Van der Vorst) Financial Officer)
/S/ ROBERT S. EPSTEIN Executive Vice President and July 19, 1999
- --------------------------- Director
(Robert S. Epstein)
/S/MARTIN J. HEALY Vice President and July 19, 1999
- --------------------------- Corporate Controller
(Martin J. Healy) (Principal Accounting Officer)
/S/ RICHARD C. ALBERDING Director July 19, 1999
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(Richard C. Alberding)
/S/ L. WILLIAM KRAUSE Director July 19, 1999
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(L. William Krause)
/S/ ALAN B. SALISBURY Director July 19, 1999
- ---------------------------
(Alan B. Salisbury)
/S/ ROBERT P. WAYMAN Director July 19, 1999
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(Robert P. Wayman)
/S/ JEFFREY T. WEBBER Director July 19, 1999
- ---------------------------
(Jeffrey T. Webber)
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EXHIBIT INDEX
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Exhibit
Number Description
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<S> <C>
4.1 (1) 1996 Stock Plan, as amended March 26, 1999. 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 30, 1999).
4.2 (2) Amended and Restated 1991 Employee Stock Purchase Plan, as
amended March 26, 1999, and Amended and Restated 1991
Foreign Subsidiary Employee Stock Purchase Plan, as
amended March 26, 1999. Incorporated by reference to
Exhibit 10.2 of the Registrant's Annual Report on Form
10-K for the year ended December 31, 1998 (filed on March
30, 1999).
5.1 Opinion of counsel as to legality of securities being
registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 (3) Consent of counsel
24.1 (4) Power of Attorney
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(1) 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
30, 1999).
(2) Incorporated by reference to Exhibit 10.2 of the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1998 (filed on March
30, 1999).
(3) See Exhibit 5.1
(4) See page 4 of Registration Statement on Form S-8.
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EXHIBIT 5.1
July 19, 1999
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 July 20, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 1,800,000 shares of your Common Stock
under your 1996 Stock Plan and of 2,300,000 shares of your Common Stock under
the Amended and Restated 1991 Employee Stock Purchase Plan and the Amended and
Restated 1991 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
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 21, 1999, with respect to the consolidated financial
statements of Sybase, Inc. incorporated by reference in its Annual Report
(Form 10-K) for the year ended December 31, 1998, and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Walnut Creek, California
July 15, 1999
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