<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)
1995 DIRECTOR 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, 100,000 $22.25(1) $2,225,000(1) $768
$.01 par shares
value per
share
</TABLE>
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(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.
================================================================================
<PAGE> 2
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 1995 Director 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 corporation), 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 & 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
- ----------------------------- Chief Executive
Lowell B. Hawkinson Officer, Treasurer
and Secretary
(Principal Executive
Officer)
/s/ Robert L. Moore President and May 15, 1996
- ----------------------------- Director
Robert L. Moore, Ph.D.
/s/ Stephen N. Gregorio Vice President, May 15, 1996
- ----------------------------- Finance and Chief
Stephen N. Gregorio 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>
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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EXHIBIT 5
HALE AND DORR
60 State Street
Boston, Massachusetts 02105
May 15, 1996
Gensym Corporation
125 CambridgePark Drive
Cambridge, Massachusetts 02140
Re: 1995 Director 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 100,000 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 1995 Director 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
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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
