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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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VISIGENIC SOFTWARE, INC.
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(Exact name of registrant as specified in its charter)
Delaware 94-3173927
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(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
951 Mariner's Island Blvd., Suite 120
San Mateo, CA 94404
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(Address of principal executive offices) (Zip code)
VISIGENIC SOFTWARE, INC.
1995 STOCK OPTION PLAN
1996 OUTSIDE DIRECTORS STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
EXECUTIVE PERFORMANCE INCENTIVE PLAN
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(Full title of the plan)
Kevin C. Eichler
Vice President, Finance
Chief Financial Officer
Treasurer and Secretary
Visigenic Software, Inc.
951 Mariner's Island Blvd., Suite 120
San Mateo, CA 94404
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: 415/286-1900
This registration statement, including all exhibits and attachments, contains 10
pages. The exhibit index may be found on page 8 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.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered/1/ registered share/2/ price/2/ fee
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<S> <C> <C> <C> <C>
1995 Stock Option Plan
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Common Stock 130,000 $ 1.23 $ 159,900.00 $ 48.45
Par Value $0.001 1,652,950 $ 6.41 $ 10,595,409.50 $3,210.73
467,617 $14.63 $ 6,841,236.71 $2,073.10
1996 Outside Directors Stock Option Plan
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Common Stock 200,000 $14.63 $ 2,926,000.00 $ 886.67
Par Value $0.001
Executive Performance Incentive Plan
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Common Stock 100,000 $14.63 $ 1,463,000.00 $ 443.33
Par Value $0.001
1996 Employee Stock Purchase Plan
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Common Stock 450,000 $12.43 $ 5,593,500.00 $1,695.00
Par Value $0.001
TOTAL 3,000,567 $27,579,046.21 $8,357.28
</TABLE>
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/1/ The securities to be registered include options and rights to acquire
such Common Stock.
/2/ Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 1995 Stock Option Plan, the $1.23 and $6.41 prices are computed on the
basis of the weighted average exercise prices. As to the remaining shares under
the 1995 Stock Option Plan and as to the shares under the 1996 Outside Directors
Stock Option Plan and the Executive Performance Incentive Plan, the $14.63 price
is based upon the average of the high and low prices of the Common Stock on
November 25, 1996 as reported on the National Association of Securities Dealers
Automated Quotations System. The 1996 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 $12.43 price for purchase rights under this plan is
based upon 85% of $14.63, the average of the high and low prices of the Common
Stock on November 25, 1996 as reported on the National Association of Securities
Dealers Automated Quotations System.
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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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Visigenic Software, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest prospectus filed pursuant to Rule 424(b)
under the Securities Act of 1933, as amended (the "Securities Act") containing
audited financial statements for the Company's latest fiscal year. The
prospectus is included in the Company's Registration Statement on Form S-1 (No.
333-06285).
(b) 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.
(c) The description of the Company's Common Stock contained in the
Company'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.
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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Legal Opinion. The validity of the shares of Common Stock to be
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offered hereunder has been passed upon for the Company by Gray Cary Ware &
Freidenrich, A Professional Corporation. As of November 25, 1996 certain
attorneys of Gray Cary Ware & Freidenrich, A Professional Corporation, owned
34,500 shares of the Common Stock of the Company.
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
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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 Certificate of Incorporation
which eliminate the personal liability of its directors to the Company and its
stockholders for monetary damages for breach or alleged breach of their duty of
care. The Bylaws of the Company 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 Company'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.
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;
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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
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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.
(h) Request for acceleration of effective date or filing of
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registration 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 San Mateo, State of California, on November 26, 1996.
Visigenic Software, Inc.
/s/ Kevin C. Eichler
By:____________________________________
Kevin C. Eichler, Vice President,
Finance, Chief Financial Officer,
Treasurer and Secretary
POWER OF ATTORNEY
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The officers and directors of Visigenic Software, Inc. whose signatures
appear below, hereby constitute and appoint Mark D. Hanson and Kevin C. Eichler,
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 26, 1996.
Signature Title
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/s/ Roger J. Sippl
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Roger J. Sippl Chairman of the Board, Director and
Chief Executive Officer (Principal
Executive Officer)
/s/ Mark D. Hanson
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Mark D. Hanson President and Chief Operating Officer
/s/ Kevin C. Eichler
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Kevin C. Eichler Vice President, Finance, Chief Financial
Officer, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
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/s/ Jens Christensen
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Jens Christensen Vice President, Chief Technical
Officer and Director
/s/ Gill Cogan
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Gill Cogan Director
/s/ Cristina M. Morgan
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Cristina M. Morgan Director
/s/ Michael Moritz
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Michael Moritz Director
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E. E. van Bronkhorst Director
/s/ J. Sidney Webb
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J. Sidney Webb Director
/s/ Eric Young
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Eric Young Director
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EXHIBIT INDEX
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Sequentially
Numbered Page
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4.1 Restated Certificate of Incorporation of the Company is
incorporated by reference to Exhibit 3.1B to the Company's
Registration Statement on Form S-1 filed with the Securities
and Exchange Commission (File No. 333-06285) --
4.2 Bylaws of the Company is incorporated by reference to
Exhibit 3.2B to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange Commission
(File No. 333-06285) --
5 Opinion re legality 9
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Independent Public Accountants 10
24 Power of Attorney (included in signature pages to this
registration statement) --
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EXHIBIT 5
[GRAY CARY WARE FREIDENRICH LETTERHEAD APPEARS HERE]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825 OUR FILE NO.
TEL (415) 328-6561 1220386-902700
FAX (415) 327-3699 1220386-901400
1220386-902500
1220386-902600
November 27, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for Visigenic Software, 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 3,000,567 shares of the
Common Stock, $0.001 par value, of the Company which may be issued pursuant to
the exercise of options, awards and purchase rights granted under the Visigenic
Software, Inc. 1995 Stock Option Plan, 1996 Outside Directors Stock Option Plan,
Executive Performance Incentive Plan and 1996 Employee Stock Purchase Plan (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 3,000,567 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.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated June 17,
1996 included in Visigenic Software, Inc.'s filing on Form S-1 (Registration No.
333-06285) dated August 13, 1996.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Jose, California
November 26, 1996
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