<PAGE> 1
As filed with the Securities and Exchange Commission
on May 16, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Gensym Corporation
(Exact name of registrant as specified in its charter)
Delaware 04-2932756
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
125 CambridgePark Drive
Cambridge, Massachusetts 02140
(Address of Principal Executive Offices) (Zip Code)
1994 STOCK OPTION PLAN
(Full title of the Plan)
Mr. Lowell B. Hawkinson
Chairman of the Board and Chief Executive Officer
Gensym Corporation
125 CambridgePark Drive
Cambridge, Massachusetts 02140
(Name and address of agent for service)
(617) 547-2500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, 534,750 $22.25(1) $11,898,187.50(1) $4,103
$.01 par shares
value per
share
</TABLE>
------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration
fee, and based upon the average of the high and low prices of the
Registrant's Common Stock as reported by the Nasdaq National
Market on May 10, 1996 in accordance with Rules 457(c) and
457(h) of the Securities Act of 1933.
================================================================================
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to participants in the 1994 Stock Option Plan
of Gensym Corporation, a Delaware corporation (the "Registrant")
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended
(the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents, which are filed with the Securities
and Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains
audited financial statements for the Registrant's latest fiscal
year for which such statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered
by the annual reports or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant,
$.01 par value per share (the "Common Stock"), contained in a
registration statement filed under 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
shares of Common Stock offered hereby have been sold or which
deregisters all shares of Common Stock then remaining unsold, shall be
deemed to be incorporated by reference herein and to be part hereof
from the date of the filing of such documents.
Item 4. Description of Securities
Not applicable.
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Item 5. Interests of Named Experts and Counsel
The legality of the Common Stock being offered by this
Registration Statement will be passed upon by Hale and Dorr (a
partnership which includes professional corporations), 60 State Street,
Boston, Massachusetts 02109. As of the date of this Registration
Statement, H&D Investments I, a partnership comprised of certain
partners of Hale and Dorr, owns 6,784 shares of the Registrant's
Common Stock.
Item 6. Indemnification
Section 145 of the Delaware General Corporation Law provides that
a corporation has the power to indemnify a director, officer, employee
or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid
and expenses incurred in connection with an action or proceeding to
which such person is or is threatened to be made a party by reasons of
such position, if such person shall have acted in good faith and in a
manner believed to be in or not opposed to the best interests of the
corporation, and, in any criminal proceeding, if such person had no
reasonable cause to believe his or her conduct was unlawful; provided
that, in the case of actions brought by or in the right of the
corporation, no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the adjudicating
court determines that such indemnification is proper under the
circumstances.
Article EIGHTH of the Registrant's Certificate of Incorporation
provides that, except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of
directors for breach of fiduciary duty, no director of the Registrant
shall be personally liable to the Registrant or its stockholders for
any monetary damages for any breach of fiduciary duty as a director.
Article NINTH of the Registrant's Certificate of Incorporation
provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
reasonably incurred in connection with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant)
brought against such director or officer by virtue of his position as a
director or officer of the Registrant if such director or officer acted
in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Registrant, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful and (b) shall be indemnified by the Registrant
against expenses (including attorneys' fees) and amounts paid in
settlement reasonably incurred in connection with any action by or in
the right of the Registrant by virtue of his position as a director or
officer of the Registrant if such director or officer of the Registrant
acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the Registrant, except that no
indemnification shall
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be made with respect to any matter as to which such director or officer
shall have been adjudged to be liable to the Registrant, unless and
only to the extent that a court determines that, despite such
adjudication but in view of all of the circumstances of the case, such
person is fairly and reasonably entitled to indemnification for such
expenses as the court deems proper. Notwithstanding the foregoing, to
the extent that a director or officer has been successful, on the
merits or otherwise, such person shall be indemnified against all
expenses (including attorneys' fees) reasonably incurred by such person
in connection therewith. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be advanced by the Registrant
to a director or officer, at such person's request, upon receipt of an
undertaking by the director or officer to repay the amount if it is
ultimately determined that such person is not entitled to
indemnification.
Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for
indemnification has not been met. In the event of a determination by
the Registrant that the director or officer did not meet the applicable
standard of conduct required for indemnification, or if the Registrant
fails to make an indemnification payment within 60 days after such
payment is claimed by such person, such person is permitted to petition
a court to make an independent determination as to whether such person
is entitled to indemnification. As a condition precedent to the right
of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant
has the right to participate in such action or assume the defense
thereof.
Article NINTH of the Registrant's Certificate of Incorporation
further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General
Corporation Law is amended to expand the indemnification permitted to
directors or officers, the Registrant must indemnify those persons to
the fullest extent permitted by such law as so amended.
The Registrant carries a general liability insurance policy which
covers certain liabilities of directors and officers of the Registrant
arising out of claims based on acts or omissions in their capacity as
directors or officers.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings
1. The 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 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; and
(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 (i) and (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, 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.
2. The 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
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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.
3. 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
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, 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 the 15th day of May, 1996.
GENSYM CORPORATION
By: /S/ Lowell B. Hawkinson
------------------------------
Lowell B. Hawkinson
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Gensym Corporation,
hereby severally constitute and appoint Lowell B. Hawkinson, Robert L.
Moore and Stephen N. Gregorio, and each of them singly, our true and
lawful attorneys with full power to them, and each of them singly, to
sign for us and in our names, in the capacities indicated below, the
Registration Statement on Form S-8 filed herewith, and any and all
subsequent amendments to said Registration Statement, and generally to
do all such things in our names and on our behalf and in our capacities
as officers and directors to enable Gensym Corporation to comply with
the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our
said attorneys, or any of them, to said Registration Statement and any
and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/S/ Lowell B. Hawkinson
- --------------------------------- Chairman of the Board, May 15, 1996
Lowell B. Hawkinson Chief Executive
Officer, Treasurer
and Secretary
(Principal Executive
Officer)
/S/ Robert L. Moore
- --------------------------------- President and May 15, 1996
Robert L. Moore, Ph.D. Director
/S/ Stephen N. Gregorio
- --------------------------------- Vice President, May 15, 1996
Stephen N. Gregorio Finance and Chief
Financial Officer
(Principal Financial
and Accounting
Officer)
/S/ John A. Shane
- --------------------------------- Director May 15, 1996
John A. Shane
/S/ Edward Fredkin
- --------------------------------- Director May 15, 1996
Edward Fredkin
/S/ Theodore G. Johnson
- --------------------------------- Director May 15, 1996
Theodore G. Johnson
/S/ Nancy E. Pfund
- --------------------------------- Director May 15, 1996
Nancy E. Pfund
</TABLE>
-8-
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Exhibit Index
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C> <C>
4.1 (1) Amended and Restated Certificate of Incorporation
of the Registrant
4.2 (1) Amended and Restated By-Laws of the Registrant
4.3 (1) Specimen Stock Certificate of Common Stock
of the Registrant
5 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the signature
page of this Registration Statement)
</TABLE>
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(1) Incorporated herein by reference to the Registrant's
Registration Statement on Form S-1 (File No. 33-80727) filed
on December 21, 1995.
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<PAGE> 1
Hale and Dorr
60 State Street
Boston, Massachusetts 02109
EXHIBIT 5
May 15, 1996
Gensym Corporation
125 CambridgePark Drive
Cambridge, Massachusetts 02140
Re: 1994 Stock Option Plan
Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed on May 16, 1996
with the Securities and Exchange Commission relating to 534,750 shares
of the Common Stock, $.01 par value per share (the "Shares"), of Gensym
Corporation, a Delaware corporation (the "Company"), issuable under the
Company's 1994 Stock Option Plan (the "Plan").
We have examined the Restated Certificate of Incorporation of the
Company and the By-laws of the Company, each as amended to date, and
originals, or copies certified to our satisfaction, of all pertinent
records of the meetings of the directors and stockholders of the
Company, the Registration Statement and such other documents relating
to the Company as we have deemed material for the purposes of this
opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents
submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and
the authenticity of the originals of such latter documents.
Based upon the foregoing, we are of the opinion that the Company
has duly authorized for issuance the Shares, and the Shares, when
issued and paid for in accordance with the terms of the Plan and at a
price per share in excess of the par value per share for such Shares,
will be legally issued, fully-paid and nonassessable.
<PAGE> 2
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the Registration
Statement.
Very truly yours,
/S/ HALE AND DORR
-----------------
Hale and Dorr
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 19, 1996,
included in Gensym Corporation's Form S-1 (File No. 33-80727), and to all
references to our Firm included in this registration statement.
/S/ ARTHUR ANDERSEN LLP
-----------------------
Arthur Andersen LLP
Boston, Massachusetts
May 14, 1996
