<PAGE>
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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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
1998 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
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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)
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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
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock 300,000 $47.92(1) $14,376,000(1) $3,997.00
($.01 par value) shares
</TABLE>
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(1) Estimated pursuant to Rule 457(c) and (h) based upon 85% of the
average high and low price per share of the Common Stock as reported on the
Nasdaq National Market, Inc. on June 24, 1999.
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AVAILABILITY OF DOCUMENTS INCORPORATED BY REFERENCE
This document constitutes part of a prospectus under Section 10(a) of
the Securities Act. The Section 10(a) prospectus incorporates by reference
certain other documents listed in Item 3 of Part II of the registration
statement to which this prospectus relates. These other documents include:
- - the latest annual report that we filed under Section 13 or 15(d) of the
Exchange Act, or the latest prospectus that we filed under Rule 424(b)
under the Securities Act that contained audited financial statements
for the latest fiscal year for which we have filed financial
statements; and
- - all other quarterly, current and other reports that we have filed
under Section 13 or 15(d) of the Exchange Act since the end of the
latest fiscal year covered by such annual report or prospectus.
We are also required to deliver certain other documents to you under
Rule 428(b) under the Securities Act. All of these documents are available to
you without charge upon written or oral request. To obtain a copy of any or all
of these documents, you should call our Chief Financial Officer at (617)
761-2000 or write to the following address:
Allaire Corporation
One Alewife Center
Cambridge, Massachusetts 02140
Attention: Chief Financial Officer
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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;
(d) Allaire's Current Report on Form 8-K, as filed with the Commission
on April 27, 1999;
(e) Allaire's Quarterly Report on Form 10-Q, as filed with the
Commission on May 17, 1999; and
(f) Allaire's Current Report on Form 8-K/A, as filed with the
Commission on June 15, 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
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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 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.
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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 333-68639, 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 333-68639, and incorporated herein by reference).
4.3 Allaire Corporation 1998 Employee Stock Purchase Plan (filed as
Exhibit 10.3 to Allaire's registration statement on Form
S-1, File Number 333-68639, 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
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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 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.
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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 Cambridge, Commonwealth of Massachusetts, on this
28th day of June, 1999.
ALLAIRE CORPORATION
By: /s/ DAVID J. ORFAO
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David J. Orfao
President and Chief Executive Officer
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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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Joseph J. Allaire Chairman of the Board of Directors, June 28, 1999
- -------------------------------------- Chief Technology Officer and
Joseph J. Allaire Executive Vice President, Products
/s/ David J. Orfao President, Chief Executive Officer June 28, 1999
- -------------------------------------- and Director (principal executive officer)
David J. Orfao
/s/ David A. Gerth Vice President, Finance and Operations, June 28, 1999
- -------------------------------------- Treasurer and Chief Financial Officer
David A. Gerth (principal financial and accounting officer)
/s/ Jonathan A. Flint Director June 28, 1999
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Jonathan A. Flint
/s/ John J. Gannon Director June 28, 1999
- --------------------------------------
John J. Gannon
/s/ Thomas A. Herring Director June 28, 1999
- --------------------------------------
Thomas A. Herring
/s/ Mitchell Kapor Director June 28, 1999
- --------------------------------------
Mitchell Kapor
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
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<S> <C>
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 333-68639, 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 333-68639, and incorporated herein by reference).
4.3 Allaire Corporation 1998 Employee Stock Purchase Plan
(filed as Exhibit 10.3 to Allaire's registration statement on
Form S-1, File Number 333-68639, 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).
</TABLE>
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EXHIBIT 5.1
[Letterhead of Foley, Hoag and Eliot LLP]
June 25, 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 300,000 shares (the "Shares") of its
common stock, $0.01 par value per share (the "Common Stock"), issuable upon
exercise of options to be granted pursuant to the Allaire Corporation 1998
Employee Stock Purchase Plan (the "Stock Purchase Plan").
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 Purchase Plan.
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.
<PAGE>
Allaire Corporation
June 25, 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 Purchase Plan, 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
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a Partner
<PAGE>
EXHIBIT 23.1
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
June 28, 1999
