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As filed with the Securities and Exchange Commission on October 9, 1996
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BRODERBUND SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-2768218
(State of incorporation) (I.R.S. Employer Identification No.)
500 Redwood Boulevard
Novato, California 94947
(Address, including zip code, of principal executive offices)
1996 EMPLOYEE AND CONSULTANT STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
Thomas L. Marcus, Esq.
Vice President and General Counsel
BRODERBUND SOFTWARE, INC.
500 Redwood Boulevard
Novato, California 94947
(Name and address of agent for service)
(408) 382-4400
(Telephone number, including area code, of agent for service)
Copies to:
TOR R. BRAHAM, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
Securities to to be Maximum Offering Maximum Aggregate Registration
be Registered Registered(1) Price Per Share(2) Offering Price(2) Fee
Common Stock,
$0.01 par value 1,750,000 $28.42355 $49,741,218.75 $17,152.26
(1) Includes 1,500,000 shares to be registered under the 1996 Employee and
Consultant Stock Option Plan (the "Option Plan") and 250,000 shares to
be registered under the 1996 Employee Stock Purchase Plan (the
"Purchase Plan").
(2) The Proposed Maximum Offering Price Per Share was estimated in part
pursuant to Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), and, in part, pursuant to Rule 457(c) under the
Securities Act. With respect to 418,750 shares which are subject to
outstanding options to purchase Common Stock under the Option Plan, the
Proposed Maximum Offering Price Per Share was estimated pursuant to
Rule 457(h) under which Rule the per share price of options to purchase
stock under an employee stock option plan may be estimated by reference
to the exercise price of such options. The weighted average exercise
price of the 418,750 shares subject to outstanding options under the
Option Plan is $38.91. With respect to (i) 1,081,250 shares of Common
Stock available for future grant under the Option Plan and (ii) 250,000
shares of Common Stock available for purchase under the Purchase Plan,
the estimated Proposed Maximum Offering Price Per Share was estimated
pursuant to Rule 457(c) whereby the per share price was determined by
reference to the average between the high and low price of the
Registrant's stock as reported in the Nasdaq National Market on October
8, 1996, which average was $25.125. The number referenced above in the
table entitled "Proposed Maximum Offering Price per Share" represents a
weighted average of the foregoing estimates calculated in accordance
with Rules 457(h) and 457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended August 31, 1995, filed pursuant to Section 13 of the Securities Exchange
Act of 1934 (the "Exchange Act").
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended November 30, 1995, February 29, 1996 and May 31, 1996 filed
pursuant to Section 13 of the Exchange Act.
(c) The Registrant's Current Reports on Form 8-K dated October 5, 1995,
November 7, 1995 and August 6, 1996.
(d) The description of the Registrant's Common Stock to be offered
hereby is contained in the Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on October 15, 1991 pursuant to
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 which indicates that all securities offered 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 part
hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation limits, to the maximum
extent permitted by Delaware law, the personal liability of directors for
monetary damages for breach of their fiduciary duties as a director. The
Registrant's Bylaws provide that the Registrant shall indemnify its officers and
directors
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and may indemnify its employees and other agents to the fullest extent permitted
by Delaware law. The Registrant has entered into indemnification agreements with
its officers and directors containing provisions which are in some respects
broader than the specific indemnification provisions contained in the Delaware
General Corporation Law. The indemnification agreements require the Registrant,
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. The Registrant believes
that these agreements are necessary to attract and retain qualified persons as
directors and officers.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify a director, officer, employee or agent made a party to
an action by reason of that fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation, against expenses actually and reasonable incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and with respect to any criminal action, had no reasonable cause
to believe his or her conduct was unlawful.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit Number
4.1 1996 Employee and Consultant Stock Option Plan
4.2 Form of Incentive Stock Option Agreement
4.3 Form of Nonqualified Stock Option Agreement
4.4 1996 Employee Stock Purchase Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C., as to
legality of securities being registered
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-4)
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 to include
any material information with respect to the plan of
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distribution not previously disclosed in the registration statement or any
material change to such information in the 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
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.
(c) 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 Securities and Exchange
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 pay ment 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 Novato, State of California, on October 9, 1996.
BRODERBUND SOFTWARE, INC.
By: /s/ Douglas G. Carlston
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Douglas G. Carlston, Chief Executive
Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas L. Marcus and William M. McDonagh,
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 to perform any acts necessary in order to file such amendments, and each
of the undersigned does hereby ratify and confirm all that said attorneys and
agents, or their or his or her substitutes, shall do or cause to be done by
virtue hereof.
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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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Douglas G. Carlston Chief Executive Officer and October 9, 1996
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(Douglas G. Carlston) and Chairman of the Board of
Directors (principal executive
officer)
/s/ William M. McDonagh President, Chief Operating Officer October 9, 1996
- -----------------------------------
(William M. McDonagh) and Director
/s/ Michael J. Shannahan Vice President and Chief Financial October 9, 1996
- -----------------------------------
(Michael J. Shannahan) Officer (Principal Financial and
Accounting Officer)
/s/ Edmund R. Auer Director October 9, 1996
- -----------------------------------
(Edmund R. Auer)
/s/ Gary L. Buckmiller Director October 9, 1996
- -----------------------------------
(Gary L. Buckmiller)
/s/ Scott D. Cook Director October 9, 1996
- -----------------------------------
(Scott D. Cook)
/s/ William P. Egan Director October 9, 1996
- -----------------------------------
(William P. Egan)
/s/ David E. Liddle Director October 9, 1996
- -----------------------------------
(David E. Liddle)
/s/ Lawrence Wilkinson Director October 9, 1996
- -----------------------------------
(Lawrence Wilkinson)
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BRODERBUND SOFTWARE, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
- ------- -----------
4.1 1996 Employee and Consultant Stock Option Plan
4.2 Form of Incentive Stock Option Agreement
4.3 Form of Nonqualified Stock Option Agreement
4.4 1996 Employee Stock Purchase Plan
5.1 Opinion of Wilson, Sonsini, Goodrich & Rosati, P.C.,
as to legality of securities being registered
23.1 Consent Ernst & Young LLP, Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see Page II-4)
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