- Securities Registration: Employee Benefit Plan (S-8)
2009年5月9日 - 5:43AM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May 8, 2009
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYBASE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE
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94-2951005
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(State of incorporation)
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(IRS Employer Identification No.)
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One Sybase Drive
Dublin, California 94568
(Address of Principal Executive Offices)
AMENDED AND RESTATED 2003 STOCK PLAN
(Full title of the plan)
Daniel R. Carl
Vice President, General Counsel and Secretary
SYBASE, INC.
One Sybase Drive
Dublin, California 94568
(Name and address of agent for service)
(925) 236-5000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions
of large accelerated filer, accelerated filer and smaller reporting
company in Rule 12b-2 of the
Exchange Act. (Check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of
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Amount
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Proposed Maximum
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Proposed Maximum
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Amount of
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Securities to be
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to be
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Offering Price Per
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Aggregate Offering
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Registration
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Registered
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Registered(1)
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Share (2)
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Price (2)
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Fee
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Common Stock, $.001 par value,
issuable under the Sybase, Inc.
Amended and Restated
2003 Stock Plan
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5,014,639
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$33.375
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$167,363,577
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$9,338.89
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TOTAL
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5,014,639
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$33.375
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$167,363,577
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$9,338.89
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(1)
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This Registration Statement covers, in addition to the number of shares of Sybase,
Inc., a Delaware corporation (the Company or the Registrant), common stock, par value
$0.001 per share (the Common Stock), stated above, options and other rights to purchase
or acquire the shares of Common Stock covered by this Registration Statement and, pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the Securities Act), an
additional indeterminate number of shares, options and rights that may be offered or issued
pursuant to the Sybase, Inc. Amended and Restated 2003 Stock Plan (Amended 2003 Plan) as
a result of one or more adjustments under the Amended 2003 Plan to prevent dilution
resulting from one or more stock splits, stock dividends or similar transactions. This
Registration Statement also includes associated preferred share purchase rights under the
Preferred Share Rights Agreement dated as of July 31, 2002 between the Company and American
Stock Transfer and Trust Co., as amended.
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(2)
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Estimated solely for the purpose of calculating the registration fee, pursuant to Rule
457(h), on the basis of the average of the high and low sale prices of the Common Stock as
reported on the New York Stock Exchange on May 6, 2009.
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TABLE OF CONTENTS
EXPLANATORY NOTES
On May 27, 2004, the Companys stockholders approved the Sybase, Inc. Amended and
Restated 2003 Stock Plan (Amended 2003 Plan). At the Companys 2009 Annual Meeting
on April 14, 2009 the Companys stockholders approved amendments to the Amended 2003
Plan, including a 5,000,000 share increase to the share reserve.
Under the terms of the Amended 2003 Plan, any shares issuable pursuant to awards
granted and outstanding under the Companys 1996 Stock Plan, as amended; 1999
Nonstatutory Stock Plan, as amended; the Companys 1992 Director Option Plan, and the
Companys 2001 Director Option Plan (the Prior Plans) that are forfeited or cancelled
after March 25, 2004, or expire without delivery of shares, also shall be made
available for grant under the Amended 2003 Plan. Since August 8, 2007, 14,639 shares
have been added to the Amended 2003 Plan from the Prior Plans due to the forfeiture or
cancellation of unexercised awards outstanding under the Prior Plans.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to
participants as specified by Securities Act Rule 428(b)(1).
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
The following documents of the Company filed with the Securities and Exchange Commission (the
Commission) are incorporated herein by reference:
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(a)
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The Companys Annual Report on Form 10-K for its fiscal year ended December
31, 2008, filed with the Commission on February 27, 2009 (Commission File No.
1-16493);
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(b)
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The Companys Quarterly Report on Form 10-Q for its fiscal quarter ended
March 31, 2009, filed with the Commission on May 8, 2009 (Commission File No.
1-16493);
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(d)
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The Companys Current Reports on Form 8-K, filed with the Commission on
January 29, 2009, February 10, 2009, March 31, 2009 and April 24, 2009 (Commission
File No. 1-16493);
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(e)
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The description of the Companys Common Stock contained in the Companys Form
8-A (File No. 0-19395), as amended, as declared effective by the Commission on August
13, 1991;
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(f)
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The description of the Companys Preferred Share Purchase Plan and Series A
Participating Preferred Stock filed as Exhibits 1, 2 and 3 to the Companys Form 8-A/A
filed with the Commission on November 14, 1996.
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All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the Exchange Act), prior to the filing of a
post-effective amendment 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
into this Registration Statement and to be a part hereof from the date of filing of such documents;
provided, however, that documents or information deemed to have been furnished and not filed in
accordance with Commission rules shall not be deemed incorporated by reference into this
Registration Statement. Any statement contained herein or in a document, all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or amended, to constitute a part of this
Registration Statement.
Item 4.
Description of Securities
Not applicable.
Item 5.
Interests of Named Experts and Counsel
The opinion of counsel in Exhibit 5.1 was provided by Dan Cohen, Corporate Counsel for the
company. Mr. Cohen is the Companys Corporate Counsel and is compensated by the Company as an
employee.
Item 6.
Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation law authorizes a court to award, or a
corporations Board of Directors to grant, indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities Act. Article TENTH of
the Registrants Certificate of Incorporation and Article VI of the Bylaws of the Registrant
provide for the indemnification of certain agents to the maximum extent permitted by the Delaware
General Corporation Law. Persons covered by these indemnification provisions include current and
former directors, officers, employees and other agents of the Registrant, as well as persons who
serve at the request of the Registrant as directors, officers, employees or agents of another
enterprise. In addition, the Registrant has entered into agreements with its officers and
directors that require the Registrant to indemnify its officers and directors to the maximum extent
allowed under Delaware law.
Item 7.
Exemption from Registration Claimed
Not applicable.
Item 8.
Exhibits
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Exhibit
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Number
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Description
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4.1
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Sybase, Inc. Amended and Restated 2003 Stock Plan
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5.1
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Opinion of counsel as to legality of securities being registered
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23.1
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Consent of Independent Registered Public Accounting Firm
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23.2
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Consent of counsel
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24.1
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Power of Attorney
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Item 9.
Undertakings
(a) 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
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securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in this 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrants annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, executive officers and controlling persons of the Registrant
pursuant to the provisions described in Item 6 above, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Dublin, State of California, on May 8, 2009.
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SYBASE, INC.
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By:
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/s/ Daniel Carl
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Daniel Carl
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Vice President, General Counsel
and Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes
and appoints John S. Chen, Jeff Ross and Daniel Carl, jointly and severally, his or her
attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities,
to sign any amendment to this Registration Statement on Form S-8 and to file the same, with
exhibits thereto and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has
been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ John S. Chen
(John S. Chen)
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Chairman of the Board,
President, Chief Executive Officer
(Principal Executive Officer),
and Director
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May 8, 2009
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/s/ Jeffrey G. Ross
(Jeffrey G. Ross)
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Senior Vice President and
Chief Financial Officer
(Principal Financial Officer),
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May 8, 2009
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/s/ Keith Jensen
(Keith Jensen)
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Vice President and
Corporate Controller
(Principal Accounting Officer)
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May 8, 2009
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Director
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May 8, 2009
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(Richard C. Alberding)
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Director
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May 8, 2009
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(Cecilia Claudio)
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Director
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May 8, 2009
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(Michael Daniels)
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Director
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May 8, 2009
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(L. William Krause)
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Director
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May 8, 2009
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(Alan B. Salisbury)
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Signature
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Title
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Date
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Director
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May 8, 2009
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(Jack E. Sum)
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Director
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May 8, 2009
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(Robert P. Wayman)
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5
SYBASE, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
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Exhibit
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Number
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Description
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4.1
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Sybase, Inc. Amended and Restated 2003 Stock Plan
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5.1
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Opinion of counsel as to legality of securities being registered
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23.1
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Consent of Independent Registered Public Accounting Firm
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23.2
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Consent of counsel (included Exhibit 5.1)
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24.1
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Power of Attorney (included in this Registration Statement under
Signatures)
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