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 1997 STOCK INCENTIVE PLAN
ALLAIRE CORPORATION 1998 STOCK INCENTIVE PLAN
(Full Title of the Plans)
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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
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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
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<S> <C> <C> <C> <C>
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
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</TABLE>
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(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.
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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.
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
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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).
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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
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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
21st day of April, 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.
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Signature Title Date
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<S> <C> <C>
/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
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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).
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.
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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
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a Partner
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
