-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E3n/VfMk38ksHI41JZHcK72rxPmIEwQTYIuGoFZugK7h3GjmO81ZTzHPnaOmZPw4 7VHoApp/Vc2Cblr2aqZykQ== 0001029869-99-000457.txt : 19990426 0001029869-99-000457.hdr.sgml : 19990426 ACCESSION NUMBER: 0001029869-99-000457 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990423 EFFECTIVENESS DATE: 19990423 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLAIRE CORP CENTRAL INDEX KEY: 0001016139 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 411812820 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-76855 FILM NUMBER: 99599310 BUSINESS ADDRESS: STREET 1: ONE ALEWIFE CENTER 3RD FLOOR STREET 2: SUITE 552 CITY: CAMBRIDGE STATE: MA ZIP: 02140 BUSINESS PHONE: 6177612000 MAIL ADDRESS: STREET 1: FOLEY HOAG & ELIOT LLP STREET 2: ONE POST OFFICE SQUARE CITY: BOSTON STATE: MA ZIP: 02109 S-8 1 REGISTRATION STATEMENT FORM S-8 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 --------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- ALLAIRE CORPORATION (Exact Name of Registrant as Specified in Its Charter) Delaware 41-1830792 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) One Alewife Center, Cambridge, Massachusetts 02140 (Address of Principal Executive Offices) (Zip Code) ALLAIRE CORPORATION 1997 STOCK INCENTIVE PLAN ALLAIRE CORPORATION 1998 STOCK INCENTIVE PLAN (Full Title of the Plans) -------------------- David J. Orfao President and Chief Executive Officer Allaire Corporation One Alewife Center Cambridge, Massachusetts 02140 (Name and Address of Agent For Service) (617) 761-2000 (Telephone Number, Including Area Code, of Agent For Service) -------------------- WITH COPIES TO: Robert L. Birnbaum, Esquire William R. Kolb, Esquire Foley, Hoag & Eliot LLP One Post Office Square Boston, Massachusetts 02109 (617) 832-1000 --------------------
CALCULATION OF REGISTRATION FEE ================================================================================================== Proposed Title of Maximum Securities Amount Proposed Maximum Aggregate Amount of to be to be Offering Price Offering Registration Registered Registered Per Share Price Fee ================================================================================================== Common Stock 807,187(1) $ 1.805(2) $ 1,456,972.53(2) $ 406.00 ($.01 par value) shares Common Stock 206,439(3) $56.563(4) $11,676,809.16(4) $ 3,247.00 ($.01 par value) shares Common Stock 687,650(5) $39.446(6) $27,125,041.90(6) $ 7,541.00 ($.01 par value) shares Common Stock 1,212,350(7) $56.563(8) $68,574,153.05(8) $19,064.00 ($.01 par value) shares ==================================================================================================
(1) Represents shares of Common Stock issuable upon exercise of stock options granted pursuant to the Allaire Corporation 1997 Stock Incentive Plan as of April 21, 1999. (2) Calculated pursuant to Rule 457(h)(1) based on the weighted average exercise price per share of the options. (3) Represents shares of Common Stock issuable pursuant to options that may be granted under our 1997 Plan but that have not yet been granted as of April 21, 1999. (4) Estimated pursuant to Rule 457(c) and (h) based on the average of the high and low prices of our Common Stock as reported on the Nasdaq Stock Market on April 20, 1999. (5) Represents shares of Common Stock issuable upon exercise of stock options granted pursuant to the Allaire Corporation 1998 Stock Incentive Plan as of April 21, 1999. (6) Calculated pursuant to Rule 457(h) based on the weighted average exercise price per share of the options. (7) Represents shares of Common Stock issuable pursuant to options that may be granted under our 1998 Plan but that have not yet been granted as of April 21, 1999. (8) Estimated pursuant to Rule 457(c) and (h) based on the average of the high and low prices of our Common Stock as reported on the Nasdaq Stock Market on April 20, 1999. -------------------------- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated in this registration statement by reference: (a) Allaire's Prospectus dated January 22, 1999 included in Allaire's registration statement on Form S-1, File Number 333-68639, as declared effective by the Commission on January 22, 1999; (b) the description of Allaire's common stock contained in the registration statement on Form 8-A filed with the Commission on January 15, 1999 under Section 12 of the Securities Exchange Act of 1934, including any amendment or report filed for the purpose of updating such description; (c) Allaire's Annual Report on Form 10-K for the fiscal year ended on December 31, 1998, as filed with the Commission on March 31, 1999. All documents subsequently filed by Allaire pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, 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 of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the securities registered hereby is being passed upon for Allaire Corporation by Foley, Hoag & Eliot LLP, Boston, Massachusetts. Item 6. Indemnification of Directors and Officers. Section 145 of the Delaware General Corporation Law affords a Delaware corporation the power to indemnify its present and former directors and officers under certain conditions. Article Six of Allaire's Amended and Restated Certificate of Incorporation provides that Allaire will indemnify each person who at any time is, or has been, a director or officer of Allaire and was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of Allaire or is or was serving at our request as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines and amounts paid in II-1 settlement incurred in connection with any such action, suit or proceeding, to the maximum extent permitted by the Delaware General Corporation Law, as the same exists or may hereafter be amended. No amendment to or repeal of the provisions of Article Six of the Amended and Restated Certificate of Incorporation will deprive a director or officer of the benefit thereof with respect to any act or failure occurring prior to such amendment or repeal. Section 102(b)(7) of the Delaware General Corporation Law gives a Delaware corporation the power to adopt a charter provision eliminating or limiting the personal liability of directors to the corporation or its stockholders for breach of fiduciary duty as directors, provided that such provision may not eliminate or limit the liability of directors for: (a) any breach of the director's duty of loyalty to the corporation or its stockholders; (b) any acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) any payment of a dividend or approval of a stock purchase that is illegal under Section 174 of the Delaware General Corporation Law; or (d) any transaction from which the director derived an improper personal benefit. Article Eight of Allaire's Amended and Restated Certificate of Incorporation provides that to the maximum extent permitted by the Delaware General Corporation Law, no director will be personally liable to Allaire or to any of its stockholders for monetary damages arising out of such director's breach of fiduciary duty as a director. No amendment to or repeal of the provisions of Article Eight will apply to or have any effect on the liability or the alleged liability of any director with respect to any act or failure to act of such director occurring prior to such amendment or repeal. A principal effect of Article Eight is to limit or eliminate the potential liability of Allaire's directors for monetary damages arising from breaches of their duty of care, unless the breach involves one of the four exceptions described in (a) through (d) above. Section 145 of the Delaware General Corporation Law also affords a Delaware corporation the power to obtain insurance on behalf of its directors and officers against liabilities incurred by them in those capacities. Allaire has obtained a directors' and officers' liability and company reimbursement liability insurance policy that: (a) insures directors and officers against losses (above a deductible amount) arising from certain claims made against them by reason of certain acts done or attempted by such directors or officers; and (b) insures Allaire against losses (above a deductible amount) arising from any such claims, but only if Allaire is required or permitted to indemnify such directors or officers for such losses under statutory or common law or under provisions of its Amended and Restated Certificate of Incorporation or Amended and Restated By-Laws. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Amended and Restated Certificate of Incorporation of Allaire Corporation (filed as Exhibit 3.3 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). II-2 4.2 Amended and Restated By-Laws of Allaire Corporation (filed as Exhibit 3.5 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 4.3 Allaire Corporation 1997 Stock Incentive Plan (filed as Exhibit 10.1 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 4.4 Allaire Corporation 1998 Stock Incentive Plan (filed as Exhibit 10.2 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 5.1 Opinion of Foley, Hoag & Eliot LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1). 24.1 Power of Attorney (contained on the signature page). Item 9. Undertakings. 1. 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof. 2. 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 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of 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) if, in the aggregate, the changes in volume and price represent no more than a II-3 20 percent 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 the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs 2 (a)(1)(i) and 2 (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein. (b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment will 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. 3. 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 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. II-4 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 Cambridge, Commonwealth of Massachusetts, on this 21st day of April, 1999. ALLAIRE CORPORATION By: /s/ David J. Orfao -------------------------------------- David J. Orfao President and Chief Executive Officer II-5 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints David J. Orfao and David A. Gerth, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing which they, or any of them, may deem necessary or advisable to be done in connection with this registration statement, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or any substitute or substitutes for any or all of them, may lawfully 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.
Signature Title Date - --------- ----- ---- /s/ Joseph J. Allaire - ---------------------------- Chairman of the Board of Directors, Joseph J. Allaire Chief Technology Officer and Executive Vice President, Products April 21, 1999 /s/ David J. Orfao - ---------------------------- President, Chief Executive Officer David J. Orfao and Director (principal executive officer) April 21, 1999 /s/ David A. Gerth - ---------------------------- Vice President, Finance and Operations, David A. Gerth Treasurer and Chief Financial Officer (principal financial and accounting officer) April 21, 1999 /s/ Jonathan A. Flint - ---------------------------- Director April 21, 1999 Jonathan A. Flint /s/ John J. Gannon - ---------------------------- Director April 21, 1999 John J. Gannon /s/ Thomas A. Herring - ---------------------------- Director April 21, 1999 Thomas A. Herring /s/ Mitchell Kapor - ---------------------------- Director April 21, 1999 Mitchell Kapor
II-6 EXHIBIT INDEX Exhibit No. Description 4.1 Amended and Restated Certificate of Incorporation of Allaire Corporation (filed as Exhibit 3.3 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 4.2 Amended and Restated By-Laws of Allaire Corporation (filed as Exhibit 3.5 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 4.3 Allaire Corporation 1997 Stock Incentive Plan (filed as Exhibit 10.1 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 4.4 Allaire Corporation 1998 Stock Incentive Plan (filed as Exhibit 10.2 to Allaire's registration statement on Form S-1, File Number 333-63689, and incorporated herein by reference). 5.1 Opinion of Foley, Hoag & Eliot LLP. 23.1 Consent of PricewaterhouseCoopers LLP, independent accountants. 23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1). 24.1 Power of Attorney (contained on the signature page). EX-5.1 2 OPINION OF FOLEY, HOAG & ELIOT LLP April 22, 1999 Allaire Corporation One Alewife Center Cambridge, Massachusetts 02140 Ladies and Gentlemen: We are familiar with the Registration Statement on Form S-8 (the "S-8 Registration Statement") filed today by Allaire Corporation, a Delaware corporation (the "Company"), with the Securities and Exchange Commission under the Securities Act of 1933, as amended. The S-8 Registration Statement relates to the proposed offering by the Company of 2,913,626 shares (the "Shares") of its common stock, par value $0.01 per share (the "Common Stock"), issuable upon exercise of stock options and other stock awards granted or to be granted pursuant to the Allaire Corporation 1997 Stock Incentive Plan and the Allaire Corporation 1998 Stock Incentive Plan (the "Stock Incentive Plans"). In arriving at the opinion expressed below, we have examined and relied on the following documents: 1. The Amended and Restated Certificate of Incorporation, and the Amended and Restated By-Laws of the Company; 2. The records of meetings and consents of the Board of Directors and stockholders of the Company provided to us by the Company; and 3. The Stock Incentive Plans. In addition, we have examined and relied on the originals or copies certified or otherwise identified to our satisfaction of all such corporate records of the Company and such other instruments and other certificates of public officials, officers and representatives of the Company and such other persons, and we have made such investigations of law, as we have deemed appropriate as a basis for the opinions expressed below. Allaire Corporation April 22, 1999 Page 2 Based upon the foregoing, it is our opinion that: 1. The Company has corporate power adequate for the issuance of the Shares in accordance with the S-8 Registration Statement. 2. The Company has taken all necessary corporate action required to authorize the issuance and sale of the Shares. 3. When certificates for the Shares have been duly executed and countersigned, and delivered against due receipt of the consideration for the Shares as described in the Stock Incentive Plans and the option agreement or other agreement related thereto, the Shares will be legally issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the S-8 Registration Statement. Very truly yours, FOLEY, HOAG & ELIOT LLP By: /s/ William R. Kolb --------------------------- a Partner EX-23.1 3 CONSENT OF INDEPENDENT ACCOUNTANTS CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-8 of our report dated February 3, 1999 appearing on page 25 of Allaire Corporation's Annual Report on Form 10-K for the year ended December 31, 1998. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Boston, Massachusetts April 21, 1999 -----END PRIVACY-ENHANCED MESSAGE-----