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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
--------------------------
VISIGENIC SOFTWARE, INC.
------------------------
(Exact name of registrant as specified in its charter)
Delaware 94-3173927
-------------------------------------- --------------------------------------
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
951 Mariner's Island Boulevard, Suite 120
San Mateo, California 94404
-------------------------------------------------
(Address of principal executive offices) (Zip code)
VISIGENIC SOFTWARE, INC.
1995 Stock Option Plan
-----------------------------------------
(Full title of the plan)
Kevin C. Eichler
Vice President, Operations,
Chief Financial Officer,
Treasurer, and Secretary
Visigenic Software, Inc.
951 Mariner's Island Boulevard, Suite 120
San Mateo, California 94404
-------------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 286-1900.
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
- --------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Securities Amount to be offering price per aggregate offering Amount of
to be registered/1/ registered share/2/ price/2/ registration fee
- --------------------------------------------------------------------------------------------------------
1995 Stock Option Plan
- ----------------------
<S> <C> <C> <C> <C>
Common Stock 869,825 $ 8.18 $ 7,115,168.50
Par Value $0.001 630,175 $ 6.875 $ 4,332,453.13
TOTALS 1,500,000 $11,447,621.63 $3,468.98
</TABLE>
_____________________________
/1/ The securities to be registered include options 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 Visigenic Software, Inc. 1995 Stock Option Plan (the "1995 Stock
Option Plan"), the price is based upon the average weighted exercise price. As
to the remaining shares under the 1995 Stock Option Plan, the price is based
upon the average of the high and low prices of the Common Stock on October 13,
1997, as reported on the National Association of Securities Dealers Automated
Quotations System.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
- ------ ---------------------------------------
Visigenic Software, 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 on June 11, 1997.
(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 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
- ------ -------------------------
The class of securities to be offered is registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel
- ------ --------------------------------------
Legal Opinion. The validity of the shares of Common Stock to be offered
-------------
hereunder has been passed upon for the Company by Gray Cary Ware & Freidenrich,
A Professional Corporation. As of October 1, 1997, certain attorneys of Gray
Cary Ware & Freidenrich, A Professional Corporation, owned 30,325 shares of the
Common Stock of the Company.
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.
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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.
Pursuant to the provisions of the Delaware General Corporation Law, the
Company has adopted provisions in its Restated Certificate of Incorporation
which provide that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of (i) a breach of the
director's duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of the Delaware General Corporation Law;
and (iv) transactions from which the director derived an improper personal
benefit. The Bylaws of the Company provide for indemnification of its
directors, officers, employees and agents to the fullest 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. The Company has entered into
separate indemnification agreements with its directors and officers which may,
in some cases, be broader than the specific indemnification provisions contained
in the Delaware General Corporation Law. The indemnification agreements may
require the Company, among other things, to indemnify such officers and
directors against certain liabilities that may arise by reason of their status
or service as directors or officers (other than liabilities arising from willful
misconduct of a culpable nature), to advance their expenses incurred as a result
of any proceeding against them as to which they could be indemnified, and to
obtain directors' and officers' insurance if available on reasonable terms.
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 of 1933, as amended.
Item 7. Exemption From Registration Claimed
- ------ -----------------------------------
Inapplicable.
Item 8. Exhibits
- ------ --------
See Exhibit Index.
Item 9. Undertakings
- ------ ------------
(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:
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(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;
provided, however, that paragraphs (a)(1)(i) and (a)(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.
(b) Filing incorporating subsequent Exchange Act documents by reference
-------------------------------------------------------------------
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
--------------------------------------------------------------------
statement on Form S-8
- ---------------------
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
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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.
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 San Mateo, State of California, on October 16, 1997.
Visigenic Software, Inc.
By: /s/ Kevin C. Eichler
----------------------------------------
Kevin C. Eichler
Vice President, Operations,
Chief Financial Officer,
Treasurer, and Secretary
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SIGNATURES AND POWER OF ATTORNEY
--------------------------------
The officers and directors of Visigenic Software, Inc. whose signatures
appear below, hereby constitute and appoint Roger J. Sippl 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 October 16, 1997.
Signature Title
- --------- -----
/s/ Roger J. Sippl Chairman of the Board, Chief Executive
- ------------------------------ Officer, and Director
Roger J. Sippl (Principal Executive Officer)
/s/ Kevin C. Eichler Vice President, Operations, Chief Financial
- ------------------------------ Officer, Treasurer, and Secretary
Kevin C. Eichler (Principal Financial and Accounting Officer)
/s/ Howard H. Graham Director
- ------------------------------
Howard H. Graham
/s/ J. Sidney Webb Director
- ------------------------------
J. Sidney Webb
/s/ Gill Cogan Director
- ------------------------------
Gill Cogan
/s/ Eric Young Director
- ------------------------------
Eric Young
/s/ Jens Christensen Director
- ------------------------------
Jens Christensen
7
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EXHIBIT INDEX
-------------
4.1 Restated Certificate of Incorporation of the Company,
as filed with the Secretary of State of the State of
Delaware on August 12, 1996
4.2 Bylaws of the Company are incorporated by reference to
Exhibit 3.2B to Amendment No. 2 to the Company's
Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on July 30, 1995
(No. 333-06285)
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included in signature pages to this
registration statement)
8
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EXHIBIT 4.1
-----------
RESTATED CERTIFICATE OF INCORPORATION OF
VISIGENIC SOFTWARE, INC.
Pursuant to Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware, Mark D. Hanson, President and Chief Operating Officer of
Visigenic Software, Inc., a corporation organized and existing under the laws of
the State of Delaware (the "Corporation"), does hereby certify:
The date of filing of the Corporation's original Certificate of
Incorporation was February 12, 1993, and was incorporated under the name Very
Visual Software, Inc.
The Certificate of Incorporation of the Corporation is amended and restated
to read in its entirety as follows:
FIRST: The name of the Corporation is Visigenic Software, Inc.
----- (hereinafter sometimes referred to as the "Corporation").
SECOND: The address of the registered office of the Corporation in
------ the State of Delaware is Incorporating Services, Ltd., 15 East
North Street, in the City of Dover, County of Kent. The name of
the registered agent at that address is Incorporating Services,
Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act
----- or activity for which a corporation may be organized under the
General Corporation Law of Delaware.
FOURTH:
------
A. The Corporation is authorized to issue two classes of stock to
be designated, respectively, "Common Stock" and "Preferred
Stock." The total number of shares which the Corporation is
authorized to issue is fifty-two Million (52,000,000) shares.
Fifty Million (50,000,000) shares shall be Common Stock, $0.001
par value per share, and two Million (2,000,000) shares shall
be Preferred Stock, $0.001 par value per share.
B. The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of
shares of Preferred Stock in series, and by filing a
certificate pursuant to the applicable law of the State of
Delaware (such certificate being hereinafter referred to as a
"Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series, and to
fix the designation, powers, preferences, and rights of each
such series and any qualifications,
1
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limitations or restrictions thereof. The number of authorized
shares of Preferred Stock may be increased or decreased (but
not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or
of any series thereof, unless a vote of any such holders is
required pursuant to the terms of any Preferred Stock
Designation.
FIFTH: The following provisions are inserted for the management of the
----- business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers
of the Corporation and of its directors and stockholders:
A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by
statute or by this Restated Certificate of Incorporation or the
Bylaws of the Corporation, the directors are hereby empowered
to exercise all such powers and do all such acts and things as
may be exercised or done by the Corporation.
B. The directors of the Corporation need not be elected by written
ballot unless the Bylaws so provide.
C. Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly
called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing
by such stockholders.
D. Special meetings of stockholders of the Corporation may be
called only by either the Board of Directors pursuant to a
resolution adopted by a majority of the total number of
authorized directors (whether or not there exist any vacancies
in previously authorized directorships at the time any such
resolution is presented to the Board for adoption), the Chief
Executive Officer or the President.
2
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SIXTH:
-----
A. Subject to the rights of the holders of any series of Preferred
Stock to elect additional directors under specified
circumstances, the number of directors shall initially be set at
eight (8) and, thereafter, shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors
(whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is
presented to the Board for adoption). The directors, other than
those who may be elected by the holders of Preferred Stock under
specified circumstances, shall be divided into three classes with
the term of office of the first class (Class I) to expire at the
annual meeting of the stockholders held in 1997; the term of
office of the second class (Class II) to expire at the annual
meeting of stockholders held in 1998; the term of office of the
third class (Class III) to expire at the annual meeting of
stockholders held in 1999; and thereafter for each such term to
expire at each third succeeding annual meeting of stockholders
after such election. All directors shall hold office until the
expiration of the term for which elected, and until their
respective successors are elected, except in the case of the
death, resignation, or removal of any director.
B. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any
vacancies in the Board of Directors resulting from death,
resignation or other cause may be filled only by a majority vote
of the directors then in office, though less than a quorum, and
directors so chosen shall hold office for a term expiring at the
next annual meeting of stockholders at which the term of office
of the class to which they have been elected expires, and until
their respective successors are elected, except in the case of
the death, resignation, or removal of any director. No decrease
in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
C. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any directors, or the entire Board of
Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least
a sixty-six and two-thirds percent (66-2/3%) of the voting power
of all of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class.
3
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SEVENTH: The Board of Directors is expressly empowered to adopt,
------- amend or repeal Bylaws of the Corporation. Any adoption,
amendment or repeal of Bylaws of the Corporation by the Board of
Directors shall require the approval of a majority of the total
number of authorized directors (whether or not there exist any
vacancies in previously authorized directorships at the time any
resolution providing for adoption, amendment or repeal is
presented to the Board). The stockholders shall also have power
to adopt, amend or repeal the Bylaws of the Corporation. Any
adoption, amendment or repeal of Bylaws of the Corporation by the
stockholders shall require, in addition to any vote of the
holders of any class or series of stock of the Corporation
required by law or by this Restated Certificate of Incorporation,
the affirmative vote of the holders of at least sixty-six and
two-thirds percent (66-2/3%) of the voting power of all of the
then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class.
EIGHTH: A director of the Corporation shall not be personally liable
------ to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involved intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit.
If the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability
of a director, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing provisions of this
Article EIGHTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
4
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NINTH: The Corporation reserves the right to amend or repeal any
----- provision contained in this Restated Certificate of Incorporation
in the manner prescribed by the laws of the State of Delaware and
all rights conferred upon stockholders are granted subject to
this reservation; provided, however, that, notwithstanding any
-------- -------
other provision of this Restated Certificate of Incorporation or
any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any vote of the holders of any
class or series of the stock of this Corporation required by law
or by this Restated Certificate of Incorporation, the affirmative
vote of the holders of at least sixty-six and two-thirds percent
(66-2/3%) of the voting power of all of the then outstanding
shares of the capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a
single class, shall be required to amend or repeal this Article
NINTH, Article FIFTH, Article SIXTH, Article SEVENTH or Article
EIGHTH.
IN WITNESS WHEREOF, the Corporation has caused this Restated Certificate of
Incorporation to be signed by a duly authorized officer on this 9th day of
August 1996.
/s/ Mark D. Hanson
------------------------------------------
Mark D. Hanson,
President and Chief Operating Officer
5
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[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH, A PROFESSIONAL CORPORATION]
EXHIBIT 5
---------
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL: (650) 328-6561
FAX: (650) 327-3699
http://www.gcwf.com
October 16, 1997
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 1,500,000 shares of the
Common Stock, $0.001 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 (the "Plan").
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 1,500,000 shares
of Common Stock which may be issued upon exercise of options granted under the
Plan 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 Plan, 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
A Professional Corporation
<PAGE>
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 April 18,
1997 included in Visigenic Software, Inc.'s filing on Form 10-K dated June 11,
1997.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Jose, California
October 16, 1997
