<PAGE>
As filed with the Securities and Exchange Commission on May 25, 1999
Registration No. _________
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Inprise Corporation
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(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
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(Address of principal executive offices) (Zip code)
Inprise Corporation
Individual Stock Option Agreement
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(Full title of the plan)
JoAnne M. Butler
Vice President, General Counsel
and Secretary
Inprise Corporation
100 Enterprise 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.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Title of Proposed maximum Proposed maximum
Securities to be Amount to be offering price per aggregate offering Amount of
registered/1/ registered share/2/ price/2/ registration fee
- ------------------------------------------------------------------------------------------------------
Individual Option 1,000,000 $3.625 $3,625,000.00 $1,007.75
- ------------------
Common Stock
Par Value $0.01
</TABLE>
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/1/ The securities to be registered include options to acquire such Common
Stock.
/2/ The price is based upon the exercise price of the 1,000,000 shares subject
to an individual stock option agreement.
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<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
2
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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 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
- ------- -----------------------------------
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 of 1933;
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(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 (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 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.
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.
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
---------
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 May 25,
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 May 17, 1999
Dale Fuller (Principal Executive Officer)
/s/ Jay R. Leite Interim Chief Financial Officer
__________________________ (Principal Financial and Accounting May 25, 1999
Jay R. Leite Officer)
/s/ William F. Miller
__________________________ Chairman of the Board May 17, 1999
William F. Miller
/s/ George Hara
__________________________ Director May 17, 1999
George Hara
__________________________ Director
Stephen J. Lewis
/s/ David Heller
__________________________ Director May 17, 1999
David Heller
/s/ Harry J. Saal
__________________________ Director May 17, 1999
Harry J. Saal
/s/ William Hooper
- -------------------------- Director May 17, 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 an Exhibit 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 an
Exhibit 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 Gary Cary Ware & Friedenrich LLP]
EXHIBIT 5
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May 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 1,000,000 shares of the
Common Stock, $0.01 par value, of the Company which may be issued pursuant to an
individual stock option granted on April 9, 1999 (the "Individual Option").
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 1,000,000 shares of
Common Stock which may be issued upon exercise of options granted under the
Individual Option 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 Individual Option, 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
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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
May 25, 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
May 24, 1999
