<PAGE>
As filed with the Securities and Exchange Commission on September 28, 1999
Registration No. 333-___________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Inprise Corporation
(Exact name of registrant as specified in its charter)
Delaware 94-2895440
- -------------------------------- ---------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
100 Enterprise Way
Scotts Valley, California 95066-3249
--------------------------------------------------
(Address of principal executive offices) (Zip code)
Inprise Corporation
1997 Stock Option Plan and
1999 Employee Stock Purchase Plan
--------------------------------------
(Full title of the plan)
JoAnne M. Butler
Vice President, General Counsel
and Secretary
Inprise Corporation
100 Enterprise Way
Scotts Valley, California 95066-3249
------------------------------------
(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.
<TABLE>
<CAPTION>
=====================================================================================================
CALCULATION OF REGISTRATION FEE
=====================================================================================================
Proposed Proposed
maximum maximum
Title of Securities Amount to be offering price per aggregate Amount of
to be registered/1/ registered/2/ share/3/ offering price/3/ registration fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Option Plan
- -----------------
Common Stock 1,500,000 $4.0625 $6,093,750
Par Value $0.01
Purchase Plan
- -------------
Common Stock 800,000 $ 3.453 $2,762,400
Par Value $0.01
Totals: 2,300,000 $8,856,150 $2,462.01
</TABLE>
___________________________
/1/ The securities to be registered include options and rights to acquire
Common Stock.
/2/ Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any
stock split, stock dividend or similar transaction.
/3/ Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised
options under the 1997 Stock Option Plan, the price is computed on the
basis of the weighted average exercise price. As to the remaining shares
under the 1997 Stock Option Plan, the price is based upon the average of
the high and low prices of the Common Stock on September 22, 1999, as
reported on the Nasdaq National Market. The 1999 Employee Stock Purchase
Plan establishes a purchase price equal to 85% of the fair market value of
the Company's Common Stock, and, therefore, the price for shares under this
plan is based upon 85% of the average of the high and low prices of the
Common Stock on September 22, 1999, as reported on the Nasdaq National
Market.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
- ------ ---------------------------------------
Inprise Corporation (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 December 31, 1998, as filed with the Securities and
Exchange Commission (the "Commission") on March 31, 1999, and as amended by Form
10-K405/A filed on April 30, 1999 (File No. 001-10824).
(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.
(d) The description of the Company's Preferred Share Purchase Rights
contained in its Registration Statement on Form 8-A filed with the Commission on
December 27, 1991.
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
- ------ -------------------------
The class of securities to be offered is registered under Section 12
of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
- ------ --------------------------------------
Inapplicable.
Item 6. Indemnification of Directors and Officers
- ------ -----------------------------------------
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
2
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dividends and approval of any transaction from which a director derives an
improper personal benefit.
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 "Securities Act").
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
- ------ -----------------------------------
Inapplicable.
Item 8. Exhibits
- ------ --------
See Exhibit Index.
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(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;
3
<PAGE>
provided, however, that paragraphs (1)(i) and (l)(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.
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.
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.
4
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SIGNATURE
---------
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 September 28, 1999.
INPRISE CORPORATION
By: /s/ JoAnne M. Butler
___________________________________
JoAnne M. Butler
Vice President, General Counsel and
Secretary
5
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SIGNATURES AND POWER OF ATTORNEY
--------------------------------
The officers and directors of Inprise Corporation whose signatures appear below,
hereby constitute and appoint JoAnne M. Butler and Jay R. Leite, 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- --------------------------------- -------------------
<S> <C> <C>
/s/ Dale Fuller Interim President, Chief Executive
_____________________________ Officer and Director September 27, 1999
Dale Fuller (Principal Executive Officer)
/s/ Jay R. Leite Interim Chief Financial Officer
_____________________________ (Principal Financial and Accounting) September 27, 1999
Jay R. Leite Officer)
/s/ William F. Miller
_____________________________ Chairman of the Board September 27, 1999
William F. Miller
/s/ Robert Coates
_____________________________ Director September 27, 1999
Robert Coates
/s/ David Heller
_____________________________ Director September 27, 1999
David Heller
/s/ Harry J. Saal
_____________________________ Director September 27, 1999
Harry J. Saal
/s/ William Hooper
_____________________________ Director September 27, 1999
William Hooper
</TABLE>
6
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EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company dated October 21,
1997 is incorporated by reference to Exhibit 4.1 to the Company's Form S-8
Registration Statement, filed with the Securities and Exchange Commission
on August 13, 1998
4.2 Amended Bylaws of the Company are incorporated by reference to Exhibit 4.2
to the Company's Form S-8 Registration Statement, filed with the
Securities and Exchange Commission on August 13, 1998
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
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Arthur Andersen LLP
24 Power of Attorney (included in signature pages to this registration
statement)
<PAGE>
[Letterhead of Gray Cary Ware & Freidenrich LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone 650-833-2000 Fax 650-327-3699 www.graycary.com
EXHIBIT 5
---------
September 24, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Inprise Corporation, 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 2,300,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to
the exercise of options and purchase rights granted under the Inprise
Corporation 1997 Stock Option Plan and 1999 Employee Stock Purchase Plan
(collectively, the "Plans").
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 2,300,000 shares of
Common Stock which may be issued under the Plans 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 Plans, 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 LLP
GRAY CARY WARE & FREIDENRICH LLP
<PAGE>
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 January 27, 1999, appearing in Inprise
Corporation's Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears in the Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
San Jose, California
September 24, 1999
<PAGE>
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated April
1, 1998 on the December 31, 1997 financial statements of Visigenic Software,
Inc. included in Inprise Corporation's Form 10K filed with the Securities and
Exchange Commission on March 31, 1999.
/s/ Arthur Andersen LLP
San Jose, California
September 24, 1999
