AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 1, 2000
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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INPRISE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 94-2895440
State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
100 ENTERPRISE WAY
SCOTTS VALLEY, CALIFORNIA 95066-3249
(831) 431-1000
(Address, Including Zip Code and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
INPRISE CORPORATION 1997 STOCK OPTION PLAN
INPRISE CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
KEITH E. GOTTFRIED, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
INPRISE CORPORATION
100 ENTERPRISE WAY
SCOTTS VALLEY, CALIFORNIA 95066-3249
(831) 431-1000
(Name, Address, Including Zip Code and Telephone Number, Including
Area Code, of Agent for Service)
This Registration Statement shall become effective immediately upon filing
with the Securities and Exchange Commission in accordance with Section 8(a)
of the Securities Act of 1933, as amended, and Rule 462 thereunder.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================================
Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered (1) Registered (2) Share (3) Price (3) Registration Fee
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<S> <C> <C> <C> <C>
1997 Stock Option Plan:
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Common Stock, par value
$0.01 per share....................... 2,000,000 $ 5.56 $11,312,500 $ 2,987
1999 Employee Stock Purchase Plan:
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Common Stock, par value
$0.01 per share....................... 500,000 $ 4.81 $ 2,403,906 $ 635
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TOTALS................................ 2,500,000 ______ $ 13,716,406 $ 3,622
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</TABLE>
(1) Represents the Registrant's shares of Common Stock (and the associated
preferred stock purchase rights under the Stockholder Rights Plan, dated as
of December 20, 1991 and as amended as of February 6, 2000 and June 8,
2000, between Inprise Corporation and ChaseMellon Shareholder Services,
L.L.C., as successor to Manufacturers Hanover Trust Company of California)
(the shares of common stock, together with such rights, the "Shares") that
may be issued (i) upon exercise of options outstanding or hereafter granted
under the Inprise Corporation 1997 Stock Option Plan, including Shares that
may be issued in place of terminated or expired options, or (ii) pursuant
to the Inprise 1999 Employee Stock Purchase Plan. (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, recapitalization or other similar transaction effected without
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock. (3) Estimated pursuant to
Rule 457(h) under the Securities Act of 1933, as amended, solely for
purposes of calculating the registration fee. As to the shares under the
1997 Stock Option Plan, the price is computed based upon the average of the
high and low prices of the Common Stock as reported on the Nasdaq National
Market on August 31, 2000. The 1999 Employee Stock Purchase Plan
establishes a purchase price equal to 85% of the fair market value of the
Registrant's Common Stock and, therefore, the price for the shares under
this plan is based upon 85% of the average of the high and low prices of
the Common Stock as reported on the Nasdaq National Market on August 31,
2000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Inprise Corporation (the "Registrant") hereby incorporates by
reference in this Registration Statement the following documents and
information heretofor filed by the Registrant (Commission File Number
0-16096) with the Securities and Exchange Commission (the "Commision"):
(a)The Registrant's Annual Report on Form 10-K405 for the fiscal
year ended December 31, 1999, as filed with the Commission on
April 4, 2000.
(b)The Registrant's Quarterly report on Form 10-Q for the quarter
ended June 30, 2000, as filed with the Commission on August 11,
2000.
(c)All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act"),
since the end of the fiscal year covered by the Registrant
document referred to in (a) above.
(d)The description of the Registrant's Common Stock contained in its
Registration Statement on Form 10 filed with the Commission on
July 29, 1987 under Section 12(g) of the Exchange Act, including
any amendment or report filed for the purpose of updating such
description.
(e)The description of the Registrant's Preferred Share Purchase
Rights contained in its Registration Statement on Form 8-A filed
with the Commission on December 27, 1991 under Section 12(g) of
the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
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 then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
of this Registration Statement from the date of filing of such documents.
Any statement contained in a document incorporated in this
Registration Statement by reference shall be deemed to be modified or
superseded for the purpose of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document which also is or is deemed to be incorporated
in this Registration Statement by reference modifies or replaces such
statement.
Certain information contained in this Registration Statement
summarizes, is based upon, or refers to, information contained in one or
more exhibits to this Registration Statement. Accordingly, the information
contained herein is qualified in its entirety by reference to such
documents and should be read in conjunction therewith.
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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, as amended (the
"DGCL"), authorizes a corporation to indemnify a director or officer in any
action against him, by reason of the fact that he is a director or officer,
against expenses, including attorneys' fees, judgments, fines and amounts
paid in settlement by him if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to an action by or in the right of the
corporation, he is not adjudged to be liable for negligence or misconduct
in the performance of his duty to the corporation. While the relevant
statute does not change directors "duty of care," it enables corporations
to limit available relief to equitable remedies such as an 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 Restated Certificate of
Incorporation which provide that each person who is or was a director or
officer of the Registrant or who is or was serving at the request of the
Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
be indemnified by the Registrant to the fullest extent authorized by the
DGCL. The By-Laws of the Registrant provide that the Registrant, to the
maximum extent permitted by the DGCL, 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 Registrant shall have the power to advance the
agent's reasonable defense expenses in any such proceeding.
The Registrant maintains, on behalf of its directors and officers,
insurance protection against certain liabilities arising out of the
discharge of their duties, as well as insurance covering the Registrant for
indemnification payments made to its directors and officers for certain
liabilities. The premiums for such insurance are paid by the Registrant.
The Board of Directors has approved, and the Registrant has entered
into certain agreements (the "Indemnification Agreements") with its
directors and certain of its officers. In addition, the Board has
authorized the Registrant to enter into similar agreements with future
directors and officers and has declared it the policy of the Registrant to
enter into such agreements.
Each Indemnification Agreement provides, in effect, that the
Registrant shall indemnify the director or officer whenever the Registrant
is legally permitted to do so. Directors and officers must be found to have
met the relevant standards of conduct to be entitled to indemnification.
If, pursuant to the Indemnification Agreements or otherwise, the Registrant
is required to make payments in respect of its indemnification obligations
in excess of or not covered by the Registrant's officers' and directors'
liability insurance, such payments could materially adversely affect the
Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Registrant dated
October 21, 1997, incorporated by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-8, as filed with
the Commission on August 13, 1998.
4.2 Amended By-laws of the Registrant, incorporated by reference to
Exhibit 4.2 to the Registrant's Registration Statement on Form
S-8, as filed with the Commission on August 13, 1998.
4.3 Rights Agreement, dated as of December 20, 1991, between the
Registrant and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent and as the successor in interest to Manufacturers
Hanover Trust Company of California, and exhibits thereto,
including, Exhibit A, the Certificate of Designation, Preferences
and Rights of Series A Junior Participating Preferred Stock, and
Exhibit B, the Form of Rights Certificate, incorporated by
reference to Exhibit 1 to the Registrant's Registration Statement
on Form 8-A, as filed with the Commission on December 27, 1991.
4.4 Amendment No. 1, dated as of February 6, 2000, to the Rights
Agreement, dated as of December 20, 1991, between the Registrant
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
incorporated by reference to Exhibit 2 to Amendment No. 1 to the
Registrant's Registration Statement on Form 8-A, as filed with
the Commission on February 11, 2000.
4.5 Amendment No. 2, dated as of June 28, 2000, to the Rights
Agreement, dated as of December 20, 1991, between the Registrant
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
incorporated by reference to Exhibit 8 to Amendment No. 2 to the
Registrant's Registration Statement on Form 8-A, as filed with
the Commission on June 29, 2000.
4.6 Certificate of Designation for Series B Preferred Stock of
Inprise, incorporated by reference to Exhibit 3.1 to Inprise's
Current Report on Form 8-K, as filed with the Commission on July
14, 1997.
4.7 Certificate of Designation for Series C Convertible Preferred
Stock of the Registrant, incorporated by reference to Exhibit 3.1
to the Registrant's Current Report on Form 8-K, as filed with the
Commission on July 6, 1999.
4.8 Certificate of Correction Filed to Correct a Certain Error in the
Certificate of Designation of Series C Convertible Preferred
Stock of the Registrant filed in the Office of the Secretary of
State of Delaware on June 8, 1999, incorporated by reference to
Exhibit 3.2 to the Registrant's Current Report on Form 8-K, as
filed with the Commission on July 6, 1999.
4.9 Amendment to the Inprise Corporation 1997 Stock Option Plan, as *
approved by the Registrant's Board of Directors on May 15, 2000.
4.10 Inprise Corporation 1997 Stock Option Plan, incorporated by
reference to Exhibit 4.4 to the Registrant's Registration
Statement on Form S-8, as filed with the Commission on December
19, 1997.
4.11 Inprise Corporation 1999 Employee Stock Purchase Plan,
incorporated by reference to the exhibit to the Registrant's
Proxy Statement on Schedule 14A, as filed with the Commission on
May 11, 1999.
5.0 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the *
legality of the shares of Common Stock being registered hereby.
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP. *
23.3 Consent of Arthur Andersen LLP. *
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
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* filed herewith
ITEM 9. UNDERTAKINGS.
1. The undersigned Registrant hereby undertakes:
(a) 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 (a)(i) and (a)(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.
(b) 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.
(c) 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.
2. Filing incorporating subsequent Exchange Act documents by
reference.
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.
3. Request for acceleration of effective date or filing of
registration statement on Form S-8.
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
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.
SIGNATURES
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 1, 2000.
INPRISE CORPORATION
By: /s/ Keith E. Gottfried
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Keith E. Gottfried
Senior Vice
President, General
Counsel and
Corporate Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Dale L. Fuller, Frederick A.
Ball and Keith E. Gottfried, and each of them singly, as his or her true
and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him or her in his or her name, place and stead, in any
and all capabilities, to file and sign any and all amendments and
supplements to this Registration Statement, including any and all pre- and
post-effective amendments, and any and all documents in connection
therewith, and to file the same, with all exhibits thereto, and any and all
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, and hereby ratifies,
approves and confirms all that his or her said attorney-in-fact and agent,
or his or her substitute or substitutes may lawfully do or cause to be done
by virtue hereof. Each of said attorneys-in-fact shall have the power to
act hereunder with or without the other.
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 September 1, 2000.
Signature Title
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Interim President, Chief Executive
Officer and Director (Principal Executive
/s/ Dale L. Fuller Officer)
-----------------------------------
Dale L. Fuller
Senior Vice President and Chief
Officer (Principal Financial and
/s/ Frederick A. Ball Accounting Officer)
-----------------------------------
Frederick A. Ball
/s/ William F. Miller Director and Chairman of the Board
-----------------------------------
William F. Miller
Director and Vice Chairman of the
/s/ Robert H. Kohn Board
-----------------------------------
Robert H. Kohn
/s/ Robert Dickerson Director
-----------------------------------
Robert Dickerson
Director
-----------------------------------
David Heller
/s/ William K. Hooper Director
-----------------------------------
William K. Hooper
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Registrant dated October
21, 1997, incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-8, as filed with the Commission on
August 13, 1998.
4.2 Amended By-laws of the Registrant, incorporated by reference to
Exhibit 4.2 to the Registrant's Registration Statement on Form S-8, as
filed with the Commission on August 13, 1998.
4.3 Rights Agreement, dated as of December 20, 1991, between the
Registrant and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent and as the successor in interest to Manufacturers Hanover Trust
Company of California, and exhibits thereto, including, Exhibit A, the
Certificate of Designation, Preferences and Rights of Series A Junior
Participating Preferred Stock, and Exhibit B, the Form of Rights
Certificate, incorporated by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A, as filed with the
Commission on December 27, 1991.
4.4 Amendment No. 1, dated as of February 6, 2000, to the Rights
Agreement, dated as of December 20, 1991, between the Registrant and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
incorporated by reference to Exhibit 2 to Amendment No. 1 to the
Registrant's Registration Statement on Form 8-A, as filed with the
Commission on February 11, 2000.
4.5 Amendment No. 2, dated as of June 28, 2000, to the Rights Agreement,
dated as of December 20, 1991, between the Registrant and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, incorporated by
reference to Exhibit 8 to Amendment No. 2 to the Registrant's
Registration Statement on Form 8-A, as filed with the Commission on
June 29, 2000.
4.6 Certificate of Designation for Series B Preferred Stock of Inprise,
incorporated by reference to Exhibit 3.1 to Inprise's Current Report
on Form 8-K, as filed with the Commission on July 14, 1997.
4.7 Certificate of Designation for Series C Convertible Preferred Stock of
the Registrant, incorporated by reference to Exhibit 3.1 to the
Registrant's Current Report on Form 8-K, as filed with the Commission
on July 6, 1999.
4.8 Certificate of Correction Filed to Correct a Certain Error in the
Certificate of Designation of Series C Convertible Preferred Stock of
the Registrant filed in the Office of the Secretary of State of
Delaware on June 8, 1999, incorporated by reference to Exhibit 3.2 to
the Registrant's Current Report on Form 8-K, as filed with the
Commission on July 6, 1999.
4.9 Amendment to the Inprise Corporation 1997 Stock Option Plan, as *
approved by the Registrant's Board of Directors on May 15, 2000.
4.10 Inprise Corporation 1997 Stock Option Plan, incorporated by reference
to Exhibit 4.4 to the Registrant's Registration Statement on Form S-8,
as filed with the Commission on December 19, 1997.
4.11 Inprise Corporation 1999 Employee Stock Purchase Plan, incorporated by
reference to the exhibit to the Registrant's Proxy Statement on
Schedule 14A, as filed with the Commission on May 11, 1999.
5.0 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to the legality
of the shares of Common Stock being registered hereby.
23.1 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in
Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP. *
23.3 Consent of Arthur Andersen LLP. *
24.1 Power of Attorney (included on the signature page of this Registration
Statement).
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* filed herewith
