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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
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, California 95066-3249
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(Address of principal executive offices) (Zip code)
OPTIONS GRANTED UNDER THE
VISIGENIC SOFTWARE, INC. 1995 STOCK OPTION PLAN
AND POSTMODERN COMPUTING TECHNOLOGIES INC.
1995 EQUITY INCENTIVE PLAN AND
ASSUMED BY BORLAND INTERNATIONAL, INC.
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(Full title of the plan)
Hobart McK. Birmingham
Vice President, General Counsel
and Secretary
Borland International, Inc.
100 Borland Way
Scotts Valley, California 95066-3249
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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 shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities Amount to be offering price aggregate Amount of
to be registered/1/ registered per share/2/ offering price/2/ registration fee
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<S> <C> <C> <C> <C>
Option Plan
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Visigenic Software, 2,387,772 $8.70 $20,773,181 $6,128.09
Inc. 1995 Stock
Option Plan
PostModern 151,050 $0.44 $ 66,462 $ 19.61
Computing
Technologies Inc.
1995 Equity
Incentive Plan
TOTALS 2,538,772 $20,839,643 $6,147.70
</TABLE>
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/1/ The securities to be registered are shares of Common Stock, par value
$0.01, of the Registrant issuable under options granted under the specified
equity compensation plan, which have been assumed by the Registrant, and include
options to acquire such Common Stock.
/2/ The offering price is estimated pursuant to Rule 457 solely for purposes
of calculating the registration fee and is computed on the basis of the average
weighted exercise prices.
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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 "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company'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 Company's latest fiscal year ended March 31, 1997, as filed with the
Securities and Exchange Commission (the "Commission") on June 30, 1997
(File No. 0-16096).
(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 Company's Common Stock contained in its
Registration Statement filed with the Commission under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company 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.
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The Company has adopted provisions in its Restated Certificate of
Incorporation which provide that each person who is or was a director or officer
of the Company or who is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the Company to the
fullest extent authorized by the Delaware General Corporation Law. The Bylaws
of the Company provide that the Company, to the maximum extent permitted by the
Delaware General Corporation Law, shall have the power to indemnify any of its
agents against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding or potential
proceeding arising out of the relationship and, to the maximum extent permitted
by law, the Company shall have the power to advance the agent's reasonable
defense expenses in any such proceeding. Section 145 of the Delaware General
Corporation Law 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
of 1933, as amended.
The Company has entered into indemnification agreements with its
directors and certain of its officers. The Company intends to purchase and
maintain insurance on behalf of any person who is a director or officer against
any loss arising from any claim asserted against him and incurred by him in any
such capacity, subject to certain exclusions.
Item 7. Exemption From Registration Claimed
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Inapplicable.
Item 8. Exhibits
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See Exhibit Index.
Item 9. Undertakings
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(a) Rule 415 Offering
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;
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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 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.
(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.
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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 February
27, 1998.
BORLAND INTERNATIONAL, INC.
By: /s/ Hobart McK. Birmingham
-----------------------------------
Hobart McK. Birmingham
Vice President, General Counsel and
Secretary
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 February 27, 1998.
Signature Title
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* Chairman of the Board, Chief Executive Officer,
----------------------- and Director (Principal Executive Officer)
Delbert W. Yocam
*
----------------------- Vice President and Chief Financial Officer
Kathleen M. Fisher (Principal Financial and Accounting Officer)
*
-----------------------
George Hara Director
*
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Stephen J. Lewis Director
*
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David Heller Director
*
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William F. Miller Director
*
----------------------- Director
Harry J. Saal
* By: /s/ Hobart McK. Birmingham
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(Hobart McK. Birmingham, Attorney-in-Fact)
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1997, filed with the Securities and
Exchange Commission on November 14, 1997
4.2 Amended Bylaws of the Company are incorporated by reference to Exhibit
3.2 to the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997, filed with the Securities and Exchange Commission on
November 14, 1997
4.3 Rights Agreement dated as of December 23, 1991, between the Company and
Manufacturers Hanover Trust Company of California is incorporated by
reference to an Exhibit to the Company's Annual Report on Form 10-K for
the year ended March 31, 1990, filed with the Securities and Exchange
Commission
4.4 Agreement and Plan for Merger, dated as of November 17, 1997, among the
Company, Vixen Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of the Company, and Visigenic Software, Inc., is
incorporated by reference to Appendix A to the Company's Registration
Statement on Form S-4 filed with the Securities and Exchange Commission
(No. 333-45001)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of William Buck & Co.
24 Powers of Attorney are incorporated by reference to Exhibit 24.1 to the
Company's Registration Statement on Form S-4 filed with the Securities
and Exchange Commission (No. 333-45001)
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[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH, LLP]
EXHIBIT 5
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February 27, 1998
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 2,538,772
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 Visigenic Software, Inc.
1995 Stock Option Plan and the PostModern Computing Technologies Inc. 1995
Equity Incentive Plan (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 2,538,772 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.
Very truly yours,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
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CONSENT OF PRICE WATERHOUSE LLP, INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 29, 1997, except for the first
and fourth paragraphs of Note 12 which are as of May 29, 1997 and Note 14 which
is as of June 30, 1997 appearing on page 30 of Borland International, Inc.'s
Annual Report on Form 10-K for the year ended March 31, 1997.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
San Jose, California
February 27, 1998
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EXHIBIT 23.3
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated March
27, 1996, except as to the fourth paragraph of Note 1, as to which the date is
October 4, 1996, in the Registration Statement on Form S-8 pertaining to the
options granted under the Visigenic Software, Inc. 1995 Stock Option Plan and
the PostModern Computing Technologies Inc. 1995 Equity Incentive Plan, all of
which have been assumed by Borland International, Inc., with respect to the
consolidated financial statements of Open Environment Corporation, not
separately presented, included in Borland International, Inc.'s Annual Report
(Form 10-K) for the year ended March 31, 1997, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
February 26, 1998
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EXHIBIT 23.4
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CONSENT OF WILLIAM BUCK & CO., INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated
September 3, 1996, in the Registration Statement on Form S-8 pertaining to the
options granted under the Visigenic Software, Inc. 1995 Stock Option Plan and
the PostModern Computing Technologies Inc. 1995 Equity Incentive Plan, all of
which have been assumed by Borland International, Inc., with respect to the
consolidated financial statements of Open Environment Corporation, not
separately presented, included in Borland International, Inc.'s Annual Report
(Form 10-K) for the year ended March 31, 1997, filed with the Securities and
Exchange Commission.
WILLIAM BUCK & CO.
Chartered Accountants
/s/ NT Hatzistergos
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NT HATZISTERGOS
Partner
Sydney
February 27, 1998
