<PAGE>
As filed with the Securities and Exchange Commission on October 8, 1996
Registration Statement No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
---------
BORLAND INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-2895440
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
100 Borland Way
Scotts Valley, CA 95066-3249
(408) 431-1000
(Address, including Zip Code and telephone number, including
Area Code, of Registrant's principal executive offices)
1990 EMPLOYEE STOCK PURCHASE PLAN
1992 STOCK OPTION PLAN
NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full Title of the plan)
PAUL W. EMERY, II
Vice President, Chief Financial Officer
Borland International, Inc.
100 Borland Way
Scotts Valley, CA 95066-3249
(408) 431-1000
(Name, address, including Zip Code and telephone number,
including Area Code, of agent for service)
---------
Copies to:
PETER M. ASTIZ, ESQ.
BAKER & McKENZIE
660 Hansen Way
Palo Alto, California 94304
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===========================================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum Amount of
of Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered per Share (1) Offering Price (1) Fee (2)
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share......... 1,500,000 $6.69 $10,035,000 $3,460.34
===========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933 (the "Securities
Act"). Pursuant to Rule 457(c), the maximum offering price per unit is
$6.69, the average of the high and low sales price of a share of the
Registrant's Common Stock reported on the National Market System of the
NASDAQ Stock Market ("NASDAQ/NMS") on October 2, 1996, and the maximum
aggregate offering price is the product of $6.69 and 1,500,000, the
number of shares of the Registrant's Common Stock being registered hereby.
(2) The registration fee for the securities being registered hereby has been
calculated pursuant to Section 6(b) of the Securities Act and Rule 457(c)
promulgated thereunder.
================================================================================
The approximate date of commencement of proposed sale of these securities is as
soon as practicable after this Registration Statement becomes effective.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Information Incorporated by Reference.
-------------------------------------
These are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission:
The Registrant's Annual Report on Form 10-K/A for the fiscal year ended
March 31, 1996.
The Registrant's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1996.
The Registrant's definitive proxy statement dated August 5, 1996, in
connection with the Registrant's Annual Meeting of Shareholders held
September 5, 1996, filed pursuant to Section 14 of the Securities Exchange
Act of 1934 (the "Exchange Act").
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
and 15(d) of the Exchange Act 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 such
documents.
ITEM 4. Description of Securities.
-------------------------
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
-----------------------------------------
Reference is made to Section 145 of the Delaware General Corporation Law
(the "DGCL") which provides for indemnification of directors and officers.
Section 145 of the DGCL grants each corporation organized thereunder, such
as the Registrant, the power to indemnify its directors and officers against
liabilities for certain of their acts. Article Seventh of the Registrant's
Restated Certificate of Incorporation and Article VII of the Registrant's
Bylaws provide for indemnification of directors and officers of the Registrant
to the full extent permitted by Section 145 of the DGCL. Section 102(b)(7) of
the DGCL permits a provision in the certificate of incorporation of each
corporation organized thereunder, such as the Registrant, eliminating or
limiting, with certain exceptions, the personal liability of a director to the
corporation or its stockholders for monetary damages for certain breaches of
fiduciary duty as a director. Article Seventh of the Restated Certificate of
Incorporation of the Registrant eliminates the liability of directors except to
the extent that such liability arises (i) from a breach of the director's duty
of loyalty to the Registrant or its stockholder, (ii) as a result of acts or
omissions not in good faith of which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174 of the DGCL relating to the
unlawful payment of dividends or unlawful stock purchase or redemption or (iv)
any transaction from which the director derived an improper personal benefit.
ITEM 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
ITEM 8. Exhibits.
--------
Exhibit
Number
- ------
4.1 Certificate of Incorporation of the Registrant, as amended
(incorporated by reference to Exhibit 3.1 to the Registrant's
Registration Statement on Form S-4 (No. 33-42495)).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Registration Statement on Form S-4 (No. 33-42495).
5.1 Opinion of Baker & McKenzie as to legality of securities being
registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24 Powers of Attorney.
II-1
<PAGE>
ITEM 9. Undertakings.
------------
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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement;
(iii) 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;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference 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.
(4) 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.
(5) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to any provision or arrangement, 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.
<PAGE>
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 Scotts Valley, State of California, on October 7,
1996.
BORLAND INTERNATIONAL, INC.
By /s/ Paul W. Emery, II
---------------------------------
Paul W. Emery, II
Chief Financial Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities indicated:
Signature Title Date
--------- ----- ----
* Acting Chief Executive Officer Oct. 2, 1996
- ------------------------- (Principal Executive Officer)
Whitney G. Lynn
* Chief Financial Officer Oct. 2, 1996
- ------------------------- (Principal Financial Officer)
Paul W. Emery, II
* Director Oct. 2, 1996
- -------------------------
David H. Heller
* Director Oct. 2, 1996
- -------------------------
Stephen J. Lewis
* Director Oct. 2, 1996
- -------------------------
William F. Miller
* Director Oct. 2, 1996
- -------------------------
Harry J. Saal
* Director Oct. 2, 1996
- -------------------------
George Hara
* Director Oct. 2, 1996
- -------------------------
Philippe Kahn
*By: /s/ Paul W. Emery, II
------------------------
Paul W. Emery, II
Attorney-in-Fact
<PAGE>
EXHIBIT 5.1
October 3, 1996
Borland International, Inc.
100 Borland Way
Scotts Valley, California 95066-3249
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-8 (No. 333-____) filed by you with the Securities and
Exchange Commission on or about October 7, 1996, in connection with the
registration under the Securities Act of 1933, as amended (the "Act"), of an
aggregate of 1,500,000 shares (the "Shares") of your Common Stock outstanding or
reserved for issuance under your 1990 Employee Stock Purchase Plan, 1992
Employee Stock Option Plan, and Non-Employee Directors' Stock Option Plan.
As your legal counsel, we have reviewed the Registration Statement and
exhibits thereto, and examined the corporate proceedings taken with respect to
the Shares, and we are familiar with the proceedings proposed to be taken by you
in connection with the sale and issuance of the Shares. Based upon the foregoing
and such other documents and investigations as we have deemed necessary or
appropriate, we are of the opinion that the Shares, when issued and sold in the
manner described in the Registration Statement, and when payment therefor shall
have been received by you, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to said
Registration Statement and to the reference to our firm wherever appearing in
the Registration Statement. By giving such consent we do not thereby admit that
we are experts with respect to the Registration Statement, including this
exhibit, within the meaning of the term "expert" as used in the Act, or the
rules and regulations of the Commission thereunder.
Very truly yours,
/s/
BAKER & McKENZIE
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 24, 1996, except for Note 14
which is as of May 15, 1996, appearing on page 26 of Borland International
Inc.'s Annual Report on Form 10-K for the year ended March 31, 1996. We also
consent to the application of such report to the Financial Statement Schedule
for the three years ended March 31, 1996, which appears on page 44 of Borland
International Inc.'s Annual Report on Form 10-K when such schedule is read in
conjunction with the consolidated financial statements referred to in our
report.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Jose, California
October 4, 1996
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER, PAUL W. EMERY, II, and DUANE MENSINGER, and each of
them, acting together and alone, his true and lawful attorneys-in-fact and
agents with full power of substitution, in his name, place and stead to execute
on his behalf, in his capacity as a Director and/or officer of Borland
International, Inc., the registration statements on Form S-4 and Form S-8 or
other appropriate form registering up to 10,000,000 shares of the Common Stock
of Borland International, Inc., and any and all amendments thereto (including
post-effective amendments) to be filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act") and any and all other instruments which said attorneys-in-fact and
agents deem necessary or advisable to enable Borland International, Inc., to
comply with the 1933 Act and the rules, regulations and requirements of the SEC
in respect thereof, giving and granting to said attorneys-in-fact and agents,
and each of them, acting together or alone, full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to intents as he might or would do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that his said attorneys-in-fact
or substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
-------------------------------
Whitney G. Lynn
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER and DUANE MENSINGER and each of them, acting together
and alone, his true and lawful attorneys-in-fact and agents with full power of
substitution, in his name, place and stead to execute on his behalf, in his
capacity as a Director and/or officer of Borland International, Inc., the
registration statements on Form S-4 and Form S-8 or other appropriate form
registering up to 10,000,000 shares of the Common Stock of Borland
International, Inc., and any and all amendments thereto (including post-
effective amendments) to be filed with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities Act of 1933, as amended (the "1933 Act")
and any and all other instruments which said attorneys-in-fact and agents deem
necessary or advisable to enable Borland International, Inc., to comply with the
1933 Act and the rules, regulations and requirements of the SEC in respect
thereof, giving and granting to said attorneys-in-fact and agents, and each of
them, acting together or alone, full power and authority to do and perform each
and every act and thing whatsoever necessary or appropriate to be done in and
about the premises as fully to intents as he might or would do if personally
present at the doing thereof, with full power of substitution and revocation,
hereby ratifying and confirming all that his said attorneys-in-fact or
substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
-------------------------------
Paul W. Emery, II
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER, PAUL W. EMERY, II, and DUANE MENSINGER and each of
them, acting together and alone, his true and lawful attorneys-in-fact and
agents with full power of substitution, in his name, place and stead to execute
on his behalf, in his capacity as a Director and/or officer of Borland
International, Inc., the registration statements on Form S-4 and Form S-8 or
other appropriate form registering up to 10,000,000 shares of the Common Stock
of Borland International, Inc., and any and all amendments thereto (including
post-effective amendments) to be filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act") and any and all other instruments which said attorneys-in-fact and
agents deem necessary or advisable to enable Borland International, Inc., to
comply with the 1933 Act and the rules, regulations and requirements of the SEC
in respect thereof, giving and granting to said attorneys-in-fact and agents,
and each of them, acting together or alone, full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to intents as he might or would do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that his said attorneys-in-fact
or substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
--------------------------------
David Heller
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER, PAUL W. EMERY, II, and DUANE MENSINGER and each of
them, acting together and alone, his true and lawful attorneys-in-fact and
agents with full power of substitution, in his name, place and stead to execute
on his behalf, in his capacity as a Director and/or officer of Borland
International, Inc., the registration statements on Form S-4 and Form S-8 or
other appropriate form registering up to 10,000,000 shares of the Common Stock
of Borland International, Inc., and any and all amendments thereto (including
post-effective amendments) to be filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act") and any and all other instruments which said attorneys-in-fact and
agents deem necessary or advisable to enable Borland International, Inc., to
comply with the 1933 Act and the rules, regulations and requirements of the SEC
in respect thereof, giving and granting to said attorneys-in-fact and agents,
and each of them, acting together or alone, full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to intents as he might or would do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that his said attorneys-in-fact
or substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
-------------------------------
Stephen J. Lewis
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint PAUL W. EMERY, II, and DUANE MENSINGER and each of them, acting together
and alone, his true and lawful attorneys-in-fact and agents with full power of
substitution, in his name, place and stead to execute on his behalf, in his
capacity as a Director and/or officer of Borland International, Inc., the
registration statements on Form S-4 and Form S-8 or other appropriate form
registering up to 10,000,000 shares of the Common Stock of Borland
International, Inc., and any and all amendments thereto (including post-
effective amendments) to be filed with the Securities and Exchange Commission
(the "SEC") pursuant to the Securities Act of 1933, as amended (the "1933 Act")
and any and all other instruments which said attorneys-in-fact and agents deem
necessary or advisable to enable Borland International, Inc., to comply with the
1933 Act and the rules, regulations and requirements of the SEC in respect
thereof, giving and granting to said attorneys-in-fact and agents, and each of
them, acting together or alone, full power and authority to do and perform each
and every act and thing whatsoever necessary or appropriate to be done in and
about the premises as fully to intents as he might or would do if personally
present at the doing thereof, with full power of substitution and revocation,
hereby ratifying and confirming all that his said attorneys-in-fact or
substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
-------------------------------
William F. Miller
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER, PAUL W. EMERY, II, and DUANE MENSINGER and each of
them, acting together and alone, his true and lawful attorneys-in-fact and
agents with full power of substitution, in his name, place and stead to execute
on his behalf, in his capacity as a Director and/or officer of Borland
International, Inc., the registration statements on Form S-4 and Form S-8 or
other appropriate form registering up to 10,000,000 shares of the Common Stock
of Borland International, Inc., and any and all amendments thereto (including
post-effective amendments) to be filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act") and any and all other instruments which said attorneys-in-fact and
agents deem necessary or advisable to enable Borland International, Inc., to
comply with the 1933 Act and the rules, regulations and requirements of the SEC
in respect thereof, giving and granting to said attorneys-in-fact and agents,
and each of them, acting together or alone, full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to intents as he might or would do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that his said attorneys-in-fact
or substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
-------------------------------
Harry J. Saal
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER, PAUL W. EMERY, II, and DUANE MENSINGER and each of
them, acting together and alone, his true and lawful attorneys-in-fact and
agents with full power of substitution, in his name, place and stead to execute
on his behalf, in his capacity as a Director and/or officer of Borland
International, Inc., the registration statements on Form S-4 and Form S-8 or
other appropriate form registering up to 10,000,000 shares of the Common Stock
of Borland International, Inc., and any and all amendments thereto (including
post-effective amendments) to be filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act") and any and all other instruments which said attorneys-in-fact and
agents deem necessary or advisable to enable Borland International, Inc., to
comply with the 1933 Act and the rules, regulations and requirements of the SEC
in respect thereof, giving and granting to said attorneys-in-fact and agents,
and each of them, acting together or alone, full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to intents as he might or would do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that his said attorneys-in-fact
or substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
--------------------------------
George Hara
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned does hereby make and
appoint WILLIAM F. MILLER, PAUL W. EMERY, II, and DUANE MENSINGER and each of
them, acting together and alone, his true and lawful attorneys-in-fact and
agents with full power of substitution, in his name, place and stead to execute
on his behalf, in his capacity as a Director and/or officer of Borland
International, Inc., the registration statements on Form S-4 and Form S-8 or
other appropriate form registering up to 10,000,000 shares of the Common Stock
of Borland International, Inc., and any and all amendments thereto (including
post-effective amendments) to be filed with the Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended (the
"1933 Act") and any and all other instruments which said attorneys-in-fact and
agents deem necessary or advisable to enable Borland International, Inc., to
comply with the 1933 Act and the rules, regulations and requirements of the SEC
in respect thereof, giving and granting to said attorneys-in-fact and agents,
and each of them, acting together or alone, full power and authority to do and
perform each and every act and thing whatsoever necessary or appropriate to be
done in and about the premises as fully to intents as he might or would do if
personally present at the doing thereof, with full power of substitution and
revocation, hereby ratifying and confirming all that his said attorneys-in-fact
or substitutes may or shall lawfully do or cause or be done by virtue hereof.
THIS POWER OF ATTORNEY expires on December 31, 1996.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on the date
indicated below.
Dated: October 2, 1996
/s/
---------------------------------
Philippe Kahn
