As filed with the Securities and Exchange Commission on January 27, 1999
Registration No. 333-68639
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ALLAIRE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 7372 41-1830792
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
One Alewife Center
Cambridge, Massachusetts 02140
(617) 761-2000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
David J. Orfao
President and Chief Executive Officer
Allaire Corporation
One Alewife Center
Cambridge, Massachusetts 02140
(617) 761-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
<TABLE>
<S> <C>
Robert L. Birnbaum, Esq. William J. Schnoor, Jr., Esq.
William R. Kolb, Esq. Testa, Hurwitz & Thibeault, LLP
Foley, Hoag & Eliot LLP 125 High Street
One Post Office Square Boston, Massachusetts 02110
Boston, Massachusetts 02109 (617) 248-7000
(617) 832-1000
</TABLE>
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] -----------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] -----------
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [X] 333-68639
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
================================================================================
<PAGE>
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 has been filed for the sole purpose of
filing an additional exhibit to the Registration Statement.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with the
issuance and distribution of the securities being registered, other than the
underwriting discount. All amounts shown are estimates except the Securities
and Exchange Commission registration fee, the National Association of
Securities Dealers, Inc. filing fee and the Nasdaq National Market listing fee.
<TABLE>
<CAPTION>
Payable
by the
Company
-------------
<S> <C>
Securities and Exchange Commission registration fee ........ $ 15,985
National Association of Securities Dealers, Inc. filing fee 6,250
Nasdaq National Market listing fee ......................... 78,875
Printing and engraving expenses ............................ 125,000
Transfer agent fees ........................................ 5,000
Accounting fees and expenses ............................... 280,000
Legal fees and expenses .................................... 375,000
Blue Sky fees and expenses (including related legal fees) .. 10,000
Miscellaneous .............................................. 103,890
----------
Total .................................................. $1,000,000
==========
</TABLE>
Item 14. 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 Sixth of the Certificate provides
that the Company shall indemnify each person who at any time is, or shall have
been, a director or officer of the Company 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 the
Company, or is or was serving at the request of the Company as a director,
officer, trustee of, or in a similar capacity with, another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in 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 Sixth of the Certificate shall 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 (i) any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) any
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) any payment of a dividend or approval of a
stock purchase that is illegal under Section 174 of the Delaware General
Corporation Law or (iv) any transaction from which the director derived an
improper personal benefit. Article Seventh
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<PAGE>
of the Certificate provides that to the maximum extent permitted by the
Delaware General Corporation Law, no director of the Company shall be
personally liable to the Company or to any of its stockholders for monetary
damages arising out of such director's breach of fiduciary duty as a director
of the Company. No amendment to or repeal of the provisions of Article Seventh
shall apply to or have any effect on the liability or the alleged liability of
any director of the Company with respect to any act or failure to act of such
director occurring prior to such amendment or repeal. A principal effect of
such Article Seventh is to limit or eliminate the potential liability of the
Company's directors for monetary damages arising from breaches of their duty of
care, unless the breach involves one of the four exceptions described in (i)
through (iv) 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. The
Company has procured a directors' and officers' liability and company
reimbursement liability insurance policy that (a) insures directors and
officers of the Company 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 the Company against losses (above a
deductible amount) arising from any such claims, but only if the Company 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 its By-Laws.
Reference is also made to Section 7 of the Underwriting Agreement between
the Company and the Underwriters, filed as Exhibit 1.1 to this Registration
Statement, for a description of indemnification arrangements between the
Company and the Underwriters.
Item 15. Recent Sales of Unregistered Securities.
The following information is furnished with regard to all securities sold
by the Company within the past three years which were not registered under the
Securities Act.
(a) Issuances of Common Stock by Allaire Minnesota.
From February 1996 through January 1997, Allaire Corp., a Minnesota
corporation ("Allaire Minnesota"), issued and sold an aggregate of 2,000,000
shares of its Common Stock for consideration valued at $51,690.
(b) Issuances of Preferred Stock by Allaire Minnesota.
From June 1996 through March 1997, Allaire Minnesota issued and sold an
aggregate of 56,557 shares of its Series A Convertible Preferred Stock, for
aggregate consideration of $255,165. From June 1996 through March 1997, Allaire
Minnesota also issued and sold an aggregate of 514,306 shares of its Series B
Convertible Preferred Stock, for aggregate consideration of $2,324,664. In
December 1996, Allaire Minnesota issued and sold an aggregate of 84,600 shares
of its Series C Preferred Stock, for aggregate consideration of $499,986.
(c) Grants and Exercises of Allaire Minnesota's Stock Options.
From June 1996 through April 1997, Allaire Minnesota issued options to
purchase an aggregate of 1,086,800 shares of its Common Stock, and sold 1,250
shares of its Common Stock pursuant to the exercise of such options for
aggregate consideration of $1,250.
On April 25, 1997 Allaire Minnesota was reincorporated as a Delaware
corporation through the merger of Allaire Minnesota into the Company. Pursuant
to the reincorporation merger, each share of Common Stock of Allaire Minnesota
was automatically changed and converted into two
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<PAGE>
shares of Common Stock of the Company. Each share of Series A, B and C
Convertible Preferred Stock of Allaire Minnesota was automatically changed and
converted into one share of the corresponding series of the Company's
Convertible Preferred Stock. Each share of the Company's Series A, B and C
Convertible Preferred Stock issued pursuant to the reincorporation merger will
automatically change and convert into two shares of the Company's Common Stock
upon the closing of the Offering. Also pursuant to the reincorporation merger,
each option to purchase one share of Common Stock of Allaire Minnesota was
automatically converted and changed into an option to purchase two shares of
the Company's Common Stock.
(d) Issuances of Common Stock by the Company.
From January 1998 through October 1998, the Company issued and sold
1,146,086 shares of its Common Stock for aggregate consideration of $538,483.
(e) Issuances of Preferred Stock by the Company
On December 7, 1998, the Company issued and sold 31,250 shares of Series A
Convertible Preferred Stock for aggregate consideration of $500,000. Each of
these 31,250 shares of Series A Convertible Stock will automatically change and
convert into one share of the Company's Common Stock upon the closing of the
Offering.
In February 1998, the Company issued and sold 656 shares of Series A
Convertible Preferred Stock, for aggregate consideration of $5,250. Each of
these 656 shares of Series A Convertible Preferred Stock will automatically
change and convert into one share of the Company's Common Stock upon the
closing of the Offering. In May and June 1997, the Company issued and sold
2,336,909 shares of Series D Convertible Preferred Stock, for aggregate
consideration of $9,347,636. Each share of Series D Convertible Preferred Stock
will automatically change and convert into one share of the Company's Common
Stock upon the closing of the Offering.
(f) Grants of the Company's Stock Options.
From April 1997 through October 1998, the Company granted options to
purchase an aggregate of 1,368,360 shares of its Common Stock, exercisable at a
weighted average exercise price of $2.46 per share.
The issuances described in this Item 15 were made in reliance upon the
exemption from registration set forth in Section 4(2) of the Securities Act
relating to sales by an issuer not involving any public offering. None of the
foregoing transactions involved a distribution or public offering. No
underwriters were engaged in connection with the foregoing issuances of
securities, and no underwriting discounts or commissions were paid.
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<PAGE>
Item 16. Exhibits and Financial Schedules.
(a) Exhibits
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<S> <C>
+1.1 Form of Underwriting Agreement
+3.1 Certificate of Incorporation of the Company
+3.2 Proposed form of Certificate of Amendment of Certificate of Incorporation of the
Company (to become effective prior to the Offering)
+3.3 Proposed form of Amended and Restated Certificate of Incorporation of the
Company (to become effective immediately after the Offering)
+3.4 By-Laws of the Company
+3.5 Proposed form of Amended and Restated By-Laws of the Company (to become
effective immediately prior to the Offering)
+4.1 Specimen certificate for the Common Stock of the Company
5.1 Opinion of Foley, Hoag & Eliot LLP
+10.1 1997 Stock Incentive Plan as amended
+10.2 1998 Stock Incentive Plan
+10.3 1998 Employee Stock Purchase Plan
+10.4 Option Agreement for David J. Orfao
+10.5 Form of Option Agreement for other executive officers
+10.6 Office Lease Agreement between the Company and One Alewife Center Realty
Trust, dated November 5, 1997
+10.7 Lease Agreement between the Company and CambridgePark Two, L.P., dated
May 21, 1998
+10.8 Loan and Security Agreement between the Company and Silicon Valley Bank,
dated March 26, 1998
+10.9 Negative Pledge Agreement between the Company and Silicon Valley Bank, dated
March 26, 1998
+10.10 Loan Modification Agreement between the Company and Silicon Valley Bank,
dated August 6, 1998
+10.11 Loan Modification Agreement between the Company and Silicon Valley Bank,
dated December 9, 1998
+10.12 Senior Loan and Security Agreement between the Company and Phoenix Leasing
Incorporated, dated May 1, 1998
+10.13 Warrant Agreement between the Company and Comdisco, Inc., dated
August 21, 1998
+10.14 Warrant Agreement between the Company and Gregory Stento, dated
August 21, 1998
+10.15 Warrant Agreement between the Company and Polaris Venture Partners, L.P.,
dated March 7, 1997
+10.16 Warrant Agreement between the Company and Polaris Venture Partners Founders'
Fund, L.P., dated March 7, 1997
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C>
+10.17 Amended and Restated Registration Rights Agreement, dated May 15, 1997
+10.18 Waiver and Amendment No. 1 to Amended and Restated Registration Rights
Agreement, dated December 7, 1998
+10.19 Letter of Offer of Employment from the Company to David J. Orfao, dated
December 23, 1996
+10.20 Contribution and Restricted Stock Purchase Agreement between the Company and
Yesler Software, Inc., dated July 14, 1998
+10.21 Working Capital Line of Credit Letter from Polaris Ventures Partners, L.P., and
Polaris Venture Partners Founders' Fund, L.P., dated December 4, 1998
+11.1 Statement re computation of per share earnings
+23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Foley, Hoag & Eliot LLP (included in Exhibit 5.1)
+24.1 Power of Attorney (contained on page II-5 of this Registration Statement)
+27.1 Financial Data Schedule
</TABLE>
- - ----------------
+ Previously filed.
(b) Financial Statement Schedules
II--Valuation and Qualifying Accounts
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or notes thereto.
Item 17. Undertakings.
The undersigned registrant hereby undertakes to provide to the
underwriters at the closing specified in the underwriting agreements,
certificates in such denominations and registered in such names as required by
the underwriters to permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (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 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance
II-5
<PAGE>
upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective Amendment to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boston, Massachusetts, on the 27th day of January, 1999.
ALLAIRE CORPORATION
By: /s/ David J. Orfao
-----------------------------
David J. Orfao
President and Chief Executive
Officer
In accordance with the requirements of the Securities Act of 1933, this
Post-Effective Amendment to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- - --------------------------- ---------------------------------------- -----------------
<S> <C> <C>
* Chairman of the Board
- - -------------------------
Joseph J. Allaire January 27, 1999
/s/ David J. Orfao President, Chief Executive Officer and
- - ------------------------- Director (principal executive officer) January 27, 1999
David J. Orfao
* Vice President, Finance and
- - ------------------------- Operations, Treasurer and Chief
David A. Gerth Financial Officer (principal financial January 27, 1999
and accounting officer)
* Director
- - -------------------------
Jonathan A. Flint January 27, 1999
* Director
- - -------------------------
John J. Gannon January 27, 1999
* Director
- - -------------------------
Thomas A. Herring January 27, 1999
* Director
- - -------------------------
Mitchell Kapor January 27, 1999
* Director
- - -------------------------
Peter R. Roberts January 27, 1999
*By: /s/ David J. Orfao
- - -------------------------
David J. Orfao,
as Attorney-in-Fact
</TABLE>
II-7
<PAGE>
Schedule II
Valuation and Qualifying Accounts
<TABLE>
<CAPTION>
Year ended Nine months
Period from inception December 31, ended
Allowance for Doubtful Accounts (May 5, 1995) through --------------- September 30,
and Sales Returns December 31, 1995 1996 1997 1998
------------------------------- ---------------------- ------ ------ -------------
(in thousands)
<S> <C> <C> <C> <C>
Balance at beginning of period ...... $-- $ 10 $220 $487
Additions:
Charged to expense ................. 10 165 164 53
Charged against other accounts ..... -- 45 165 30
Deductions:
Write-offs and returns ............. -- -- (62) (90)
--- ---- ---- -----
Balance at end of period ............ $10 $220 $487 $480
=== ==== ==== =====
</TABLE>
FOLEY, HOAG & ELIOT LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109-2170
TELEPHONE 617-832-1000
FACSIMILE 617-832-7000http://www.fhe.com
January 27, 1999
Allaire Corporation
One Alewife Center
Cambridge, Massachusetts 02140
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-1
(Registration No. 333-68639), as amended by Pre-Effective Amendments No. 1, No.
2, No. 3 and No. 4 and Post-Effective Amendment No. 1 (as amended, the
"Registration Statement"), filed by Allaire Corporation, a Delaware corporation
(the "Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended. The Registration Statement relates to the
public offering by the Company of 2,875,000 shares (the "Company Shares") of its
Common Stock, $0.01 par value per share (the "Common Stock"), to be issued by
the Company, assuming the exercise in full of the over-allotment option
described in the Registration Statement.
We are familiar with the Company's Certificate of Incorporation and all
amendments thereto and restatements thereof, its By-Laws and all amendments
thereto and restatements thereof, the records of meetings and consents of its
Board of Directors and of its stockholders provided to us by the Company, and
the stock records provided to us by the Company. 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.
Based on the foregoing, it is our opinion that the Company has
corporate power adequate for the issuance of the Company Shares in accordance
with the Registration Statement. The Company has taken all necessary corporate
action required to authorize the issuance and sale of the Company Shares. When
certificates for the Company Shares have been duly executed and countersigned,
and delivered against due receipt of consideration therefor as described in the
Registration Statement, the Company Shares will be legally issued, fully paid
and non-assessable.
<PAGE>
Allaire Corporation
January 27, 1999
Page 2
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the prospectus forming part of the Registration Statement.
Very truly yours,
Foley, Hoag & Eliot LLP
By: /s/ William R. Kolb
--------------------------------
A Partner
