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Registration No.____________________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BORLAND INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Delaware 94-2895440
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
100 Borland Way
Scotts Valley, CA 95066
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(Address of principal executive offices) (Zip code)
OPTIONS GRANTED UNDER THE OPEN ENVIRONMENT CORPORATION
AMENDED AND RESTATED 1993 EMPLOYEE STOCK OPTION PLAN AND
THE OPEN ENVIRONMENT CORPORATION 1995 DIRECTOR STOCK OPTION PLAN
WHICH HAVE BEEN ASSUMED BY BORLAND INTERNATIONAL, INC.
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(Full title of the plan)
Paul W. Emery, II
Vice President and Secretary
Borland International, Inc.
100 Borland Way
Scotts Valley, CA 95066
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/431-1000
This registration statement, including all exhibits and attachments, contains 9
pages. The exhibit index may be found on page 7 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
1
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
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<S> <C> <C> <C> <C>
Common Stock 786,000 $9.94 $7,812,840.00 $2,367.52
Par Value $0.01
(including options
to acquire such
Common Stock)
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference
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Borland International, Inc. (the "Registrant") hereby incorporates by
reference in this registration statement the following documents:
(a) The Registrant's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), containing audited financial statements for the
Registrant's latest fiscal year ended March 31, 1996 as filed with the
Securities and Exchange Commission.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant document
referred to in (a) above.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
___________________________
(1) Estimated pursuant to Rule 457 of Section 6(b) of the Securities Act of
1933, as amended solely for purposes of calculating the registration fee. The
price is computed on the basis of the weighted average exercise price.
2
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All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
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The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
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Inapplicable.
Item 6. Indemnification of Directors and Officers
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Delaware law authorizes corporations to eliminate the personal
liability of directors to corporations and their stockholders for monetary
damages for breach or alleged breach of the directors' "duty of care." While
the relevant statute does not change directors' duty of care, it enables
corporations to limit available relief to equitable remedies such as
injunction or rescission. The statute has no effect on directors' duty of
loyalty, acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, illegal payment of dividends and
approval of any transaction from which a director derives an improper personal
benefit.
The Registrant has adopted provisions in its Certificate of
Incorporation which eliminate the personal liability of its directors to the
Registrant and its stockholders for monetary damages for breach or alleged
breach of their duty of care. The Bylaws of the Registrant provide for
indemnification of its directors, officers, employees and agents to the full
extent permitted by the General Corporation Law of the State of Delaware, the
Registrant's state of incorporation, including those circumstances in which
indemnification would otherwise be discretionary under Delaware Law. Section
145 of the General Corporation Law of the State of Delaware provides for
indemnification in terms sufficiently broad to indemnify such individuals,
under certain circumstances, for liabilities (including reimbursement of
expenses incurred) arising under the Securities Act.
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
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Item 9. Undertakings
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(a) Rule 415 Offering
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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 of 1933;
(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 (a)(1)(i) and (a)(l)(ii) do not apply if the
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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 of 1933, 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) Filing incorporating subsequent Exchange Act documents by
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reference
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The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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.
4
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(h) Request for acceleration of effective date or filing of registration
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statement on Form S-8
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Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
SIGNATURE
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Pursuant to the requirements of the Securities Act of 1933, as amended, 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 November 14,
1996.
Borland International, Inc.
/s/ Paul W. Emery, II
By: ________________________________
Paul W. Emery, II, Vice President and
Secretary
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POWER OF ATTORNEY
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The officers and directors of Borland International, Inc. whose signatures
appear below, hereby constitute and appoint Whitney Lynn, William Miller and
Paul W. Emery, II, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
on November 14, 1996.
Signature Title
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/s/ Whitney Lynn
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Whitney Lynn Acting Chief Executive Officer (Principal
Executive Officer)
/s/ Paul W. Emery, II
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Paul W. Emery, II Vice President of Finance and Administration,
Chief Financial Officer, Principal Accounting
Officer and Secretary
/s/ William Miller
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William Miller Chairman of the Board of Directors
/s/ George Hara
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George Hara Director
/s/ David Heller
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David Heller Director
/s/ Stephen J. Lewis
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Stephen J. Lewis Director
/s/ Harry J. Saal
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Harry J. Saal Director
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
Sequentially
Numbered Page
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<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant --
is incorporated by reference to Exhibit 3.1 to the
Registrant's Annual Report on Form 10-K filed with the
Securities and Exchange Commission for the year ended
March 31, 1996
4.2 Bylaws of the Registrant are incorporated by reference --
to Exhibit 3.2 to the Registrant's Annual Report on
Form 10-K filed with the Securities and Exchange
Commission for the year ended March 31, 1996
4.3 The description of the Registrant's Preferred Share --
Purchase Rights is incorporated by reference to the
Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on December
23, 1994
4.4 Agreement and Plan of Merger, dated as of May 11, 1996, --
as amended by Amendment No. 1 dated July 31, 1996 and
Amendment No. 2 dated October 8, 1996 among the Registrant,
Aspen Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of the Registrant, and Open
Environment Corporation, a Delaware corporation, is
incorporated by reference to Appendix A to the Registrant's
Registration Statement on Form S-4 filed with the Securities
and Exchange Commission (No. 333-13925)
5 Opinion re legality 8
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Independent Accountants 9
24 Power of Attorney (included in signature pages to this
registration statement) --
</TABLE>
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[LOGO OF GRAY CARYWARE FREIDENRICH APPEARS HERE] EXHIBIT 5
Attorneys at Law
400 Hamilton Avenue Our File No.
Palo Alto, CA 94301-1825 1020882-900000
Tel (415) 328-6561
Fax (415) 327-3699
November 18, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Borland International, Inc., a Delaware
corporation (the "Company"), we are rendering this opinion in connection with
the registration under the Securities Act of 1933, as amended, of up to 786,000
shares of the Common Stock, $0.01 par value, of the Company which may be issued
pursuant to the exercise of options granted under the Open Environment
Corporation Amended and Restated 1993 Employee Stock Option Plan and the Open
Environment Corporation 1995 Director Stock Option Plan which have been assumed
by Borland International, Inc. (the "Options").
We have examined all instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we express no
opinion concerning any law other than the law of the State of California, the
corporation laws of the State of Delaware and the federal law of the United
States. As to matters of Delaware corporation law, we have based our opinion
solely upon our examination of such laws and the rules and regulations of the
authorities administering such laws, all as reported in standard, unofficial
compilations. We have not obtained opinions of counsel licensed to practice in
jurisdictions other than the State of California. Based on such examination, we
are of the opinion that the 786,000 shares of Common Stock which may be issued
upon exercise of the Options are duly authorized shares of the Company's Common
Stock, and, when issued against receipt of the consideration therefor in
accordance with the provisions of the Options will be validly issued, fully paid
and nonassessable. We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement referred to above and the use of our name
wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
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
November 18, 1996
