<PAGE>
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
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)
BRIGHT TIGER TECHNOLOGIES, INC.
1996 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
--------------------
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)
--------------------
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
--------------------
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
<S> <C> <C> <C> <C>
Common Stock 15,774(1) $12.04(2) $189,918.96(2) $53.00
($.01 par value) shares
</TABLE>
(1) Represents shares of Allaire common stock issuable upon exercise
of outstanding stock options granted pursuant to the Bright Tiger
Technologies, Inc. 1996 Stock Option Plan as of May 7, 1999.
(2) Calculated pursuant to Rule 457(h)(1) based on the weighted
average xeercise price per share of the options.
-------------------------------------------
<PAGE>
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; and
(d) Allaire's Current Report on Form 8-K as filed with the
Commission on April 27, 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
<PAGE>
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.
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).
II-2
<PAGE>
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 Bright Tiger Technologies, Inc. 1996 Stock Incentive Plan, as amended.
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 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
II-3
<PAGE>
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.
II-4
<PAGE>
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 12th day of May, 1999.
ALLAIRE CORPORATION
By: /S/ DAVID J. ORFAO
David J. Orfao
President and Chief
Executive Officer
II-5
<PAGE>
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, May 12, 1999
--------------------- Chief Technology Officer and
Joseph J. Allaire Executive Vice President, Products
/S/ DAVID J. ORFAO President, Chief Executive Officer May 12, 1999
------------------ and Director (principal executive officer)
David J. Orfao
/S/ DAVID A. GERTH Vice President, Finance and Operations, May 12, 1999
------------------ Treasurer and Chief Financial Officer
David A. Gerth (principal financial and accounting officer)
/S/ JONATHAN A. FLINT Director May 12, 1999
---------------------
Jonathan A. Flint
/S/ JOHN J. GANNON Director May 12, 1999
------------------
John J. Gannon
/S/ THOMAS A. HERRING Director May 12, 1999
---------------------
Thomas A. Herring
/S/ MITCHELL KAPOR Director May 12, 1999
------------------
Mitchell Kapor
</TABLE>
II-6
<PAGE>
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
333-68639, 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 Bright Tiger Technologies, Inc. Stock Option
Plan, as amended.
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).
<PAGE>
BRIGHT TIGER TECHNOLOGIES, INC.
1996 STOCK OPTION PLAN
(as amended through October 30, 1998)
This Plan (the "Plan") of Bright Tiger Technologies, Inc., a Delaware
corporation (the "Company") provides that options for up to 1,293,840 shares
(the "Shares") of the Company's Common Stock, $.01 par value per share (the
"Stock"), may be granted to employees of the Company and its subsidiaries, as
defined below, and to others who are in a position to make significant
contributions to the success of the Company and its subsidiaries. Options
granted pursuant to the Plan may be either incentive stock options ("Incentive
Options") as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or options that are not Incentive Options ("Nonqualified
Options"), or both.
1. PURPOSE. The purpose of this Plan is to attract and retain employees
and others who are in a position to contribute significantly to the success of
the Company, to reward such contributions, and to encourage optionholders to
advance the long term interests of the Company through ownership of its Stock.
2. ADMINISTRATION.
(a) BOARD OF DIRECTORS. The Plan shall be administered by the
Board of Directors of the Company (the "Board"). The Board, subject to the
express provisions of the Plan, shall determine those persons to be granted
options, the times when options shall be granted, the number of Shares subject
to each option, and the terms and conditions of each option, including whether
each option is an Incentive Option or a Nonqualified Option. The Board shall
establish the form of instruments granting options and any other instruments
under the Plan, and the rules and regulations for the administration of the
Plan, and may amend and rescind such instruments, rules and regulations. The
Board shall interpret the Plan and decide any questions and settle all
controversies and disputes that may arise in connection with the Plan, and such
determinations of the Board shall be conclusive and shall bind all parties.
Subject to Section 16, the Board may, both generally and in particular
instances, waive compliance by an optionholder with any obligation to be
performed under an option and waive any condition or provision of an option,
except that in the case of an Incentive Option the Board may not (other than in
accordance with Section 5) grant any such waiver if such waiver would cause the
Incentive Option to no longer qualify as an Incentive Option under Section 422
of the Code.
<PAGE>
(b) COMMITTEE. The Board may, in its discretion, delegate its
powers with respect to the Plan to a Stock Option Plan Committee (the
"Committee"), in which event all references to the Board hereunder shall be
deemed to refer to the Committee. The Committee shall be appointed by the Board
and shall consist of at least two persons, each of whom shall be a director of
the Company and each of whom shall be disinterested, as such term is defined
from time to time in Rule 16b-3 promulgated under the Securities Exchange Act of
1934 and each of whom shall be an outside Director, as defined in Section 162(m)
of the Code and related legislative history. A majority of the members of the
Committee shall constitute a quorum, and all determinations of the Committee
shall be made by a majority of its members. Any determination of the Committee
under the Plan may be made without notice or meeting of the Committee by a
writing signed by all of the members of the Committee.
(c) With respect to the participation of any officer or
director in the Plan, his or her selection as an optionee, the number of option
shares to be allocated to such officer or director, the exercise price and
vesting of the options and all other terms and conditions of such options shall
be determined by, or only in accordance with, the recommendations of a Committee
established pursuant to the foregoing Section 2(b). The provisions of this
Section 2(c) shall not apply, however, with respect to any option granted prior
to the date of the first registration of an equity security of the Company under
Section 12 of the Securities and Exchange Act of 1934, as amended.
3. EFFECTIVE DATE AND TERM. This Plan shall become effective upon
adoption by the Board or approval by the stockholders by at least a majority
vote at a duly held meeting (or by written consent as provided by applicable
law), whichever is earlier, but shall not become effective unless stockholder
approval is obtained within twelve (12) months before or after the adoption of
the Plan by the Board. The Board may grant options under this Plan prior to such
approval, but any such option shall become effective as of the date of grant
only upon such approval and, accordingly, no such option may be exercisable
prior to such approval. This Plan shall terminate ten years after its effective
date.
4. SHARES SUBJECT TO THE PLAN. The Shares shall be reserved for
issuance upon the exercise of options granted under the Plan. Shares subject to
an option which expires or is terminated may again be subjected to an option
under the Plan. Shares delivered under the Plan may be authorized but unissued
Stock or treasury Stock. No fractional Shares shall be issued under the Plan.
<PAGE>
5. CHANGES IN CAPITAL STOCK. In the event of a stock dividend, stock
split or combination of shares, recapitalization or other change in the
Company's capital stock, the number and kind of shares of stock or securities of
the Company subject to options then outstanding or subsequently granted under
the Plan, the maximum number of shares or securities that may be delivered under
the Plan, the exercise price, and other relevant provisions shall be adjusted
appropriately in a manner determined by the Board to be equitable, whose
determination shall be binding. The Board may also adjust the number of Shares
subject to outstanding options, the exercise price of outstanding options and
the terms of outstanding options to take into consideration material changes in
accounting practices or principles, consolidations or mergers, acquisitions or
dispositions of stock or property or any other event if it is determined by the
Board that such adjustment is appropriate to avoid distortion in the operation
of the Plan, provided that no such adjustment shall be made in the case of an
Incentive Option if it would constitute a modification, extension or renewal of
the option within the meaning of Section 424(h) of the Code, unless the
optionholder consents.
6. ELIGIBILITY. All employees of the Company and its subsidiaries, as
well as those other persons or entities who, in the opinion of the Board, are in
a position to contribute significantly to the success of the Company or its
subsidiaries, shall be eligible to receive options under the Plan. A
"subsidiary" for purposes of the Plan shall be a subsidiary corporation as
defined in Section 424(f) of the Code. Incentive Options shall be granted only
to " employees" as defined in the applicable provisions of the Code and
regulations thereunder. Receipt of options under the Plan or of awards under any
other employee benefit plan of the Company or any of its subsidiaries shall not
preclude an employee from receiving options or additional options under the
Plan. In granting options the Board may include or exclude previous participants
in the Plan as the Board may determine.
7. TERMS AND CONDITIONS OF OPTIONS.
(a) NUMBER OF OPTIONS. The aggregate fair market value
(determined as of the time of grant) of the Shares with respect to which
Incentive Options are exercisable for the first time by an employee during any
calendar year (under the Plan and all other stock option plans of the Company or
its subsidiaries or any parent corporation) shall not exceed $100,000.
(b) EXERCISE PRICE. The exercise price of each option shall be
determined by the Board but, in the case of an Incentive Option, shall not be
less than 100% (110% in the case of an Incentive Option granted to a ten-percent
stockholder) of the fair market value of the stock subject to the option on the
date of grant; nor shall the exercise price of any option be less, in the case
of an original issue of authorized stock, than par value. For this purpose, (i)
"fair market value" shall be determined by the Board in good faith on a basis
consistent with the provisions of Section 422 of the Code and the regulations
promulgated thereunder, and (ii) "ten percent stockholder" shall mean any
employee who at the time of grant owns directly, or is deemed to own by reason
of the attribution rules set forth in Section 424(d) of the Code, more than 10%
of the total combined voting power of all classes of stock of the Company or of
any of its parent or subsidiary corporations.
<PAGE>
(c) DURATION, VESTING AND CONDITIONS OF EXERCISE. Each option
shall be exercisable during such period or periods as the Board may determine,
but in no case after the expiration of ten years (five years in the case of an
Incentive Option granted to a "ten percent stockholder" as defined in (b) above)
from the date of grant. In the discretion of the Board, options may be
exercisable (i) in full upon grant or (ii) over or after a period of time
conditioned on satisfaction of certain Company, division, group, office,
individual or other performance criteria, including the continued performance of
services to the Company or its subsidiaries. In the case of an option not
immediately exercisable in full, the Board may at any time accelerate the time
at which all or any part of the option may be exercised.
8. EXERCISE OF OPTIONS. Any exercise of an option shall be in writing
pursuant to a written instrument in the form prescribed by the Board, signed by
the proper person and delivered to the Company, accompanied by (a) such
documents as may be required by this Plan, by such written instrument, or by the
Board, and (b) payment as required by such written instrument for the number of
Shares for which the option is exercised. In addition, each exercise of an
option shall be subject to such additional conditions as may be required by the
Board, including without limitation those described in Section 9 of this Plan.
No exercise of an option shall be effective, and the Company shall not be
obligated to deliver any Shares, until all requirements and conditions for
exercise have been met to the satisfaction of the Board.
9. CONDITIONS TO EXERCISE OF OPTIONS. Except as waived by the Board in
a particular case, all the following conditions shall be complied with as a
condition to the exercise of each option granted under the Plan:
(a) LEGAL MATTERS. In the opinion of the Company's counsel all
applicable federal and state laws and regulations, including securities laws and
regulations, shall have been complied with, and legal matters in connection with
the issuance and delivery of such Shares shall have been approved by the
Company's counsel.
(b) LISTING AND REGISTRATION OF SHARES. If at any time the
Board shall determine that the listing, registration or qualification of the
Shares covered by any option upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of or in connection with the granting of
such option or the issuance or purchase of Shares thereunder, such option may
not be exercised in whole or in part unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board.
<PAGE>
(c) TAX UNDERTAKINGS. In the case of an option that is not an
Incentive Option, the Board may require the optionholder to remit to the Company
an amount sufficient to satisfy any federal, state or local withholding tax
requirements (or make other arrangements satisfactory to the Company with regard
to such taxes, including withholding from regular cash compensation or giving of
security to the Company adequate to meet the potential liability of the Company
for withholding of tax) prior to the delivery of any Shares pursuant to the
exercise of the option. In the case of an Incentive Option, if at the time the
option is exercised the Board determines that under applicable law and
regulations the Company could be liable for the withholding of any federal or
state tax with respect to a disposition of the Shares received upon exercise,
the Board may require the optionholder to agree (i) to inform the Company
promptly of any disposition (within the meaning of Section 424(c) of the Code
and the regulations thereunder) of Shares received upon exercise, and (ii) to
give such security as the Board deems adequate to meet the potential liability
of the Company for the withholding of tax, and to augment such security from
time to time in any amount reasonably deemed necessary by the Board to preserve
the adequacy of such security.
(d) EVIDENCE OF AUTHORITY. If an option is exercised by the
legal representative of a deceased optionholder or by a person to whom the
option has been transferred by the optionholder's will or by applicable laws of
descent and distribution, the Company shall not be obligated to deliver Shares
until satisfied as to the authority of the person exercising the option.
(e) RESTRICTIONS ON TRANSFER OF STOCK. If the sale of Shares
has not been registered under the Securities Act of 1933, as amended, or under
applicable state securities laws, the Company may require, as a condition to
exercise of an option, such representations or agreements from the optionholder
as counsel for the Company may consider appropriate to avoid violation of such
Act or such state securities laws and may require that the certificates
evidencing such Shares bear an appropriate legend restricting transfer. In
addition, the Board may require as conditions to the grant or exercise of any
option that the optionholder agree in writing to (i) restrictions on the
transfer of Shares, (ii) a right of first refusal of the Company to repurchase
Shares in the event the holder desires to sell such Shares, and (iii) a right of
the Company to repurchase Shares in the event of termination of employment or
death or disability. Such restrictions and rights on the part of the Company
shall be identified in the instrument granting the option.
10. PAYMENT FOR SHARES.
(a) EXERCISE PRICE. The exercise price for Shares purchased
under an option shall be paid as follows: (i) in cash or by certified check,
bank draft or money order payable to the order of the Company; (ii) if permitted
by the terms of the option (or in the case of a Nonqualified Option if permitted
by the Board), by the delivery of shares of Stock having a fair market value (as
determined by the Board in good faith in its reasonable discretion) on the date
of exercise equal to the exercise price, or (iii) by a combination of cash and
Stock.
<PAGE>
(b) PROMISSORY NOTE. To the extent permitted by any applicable
margin regulations of the Board of Governors of the Federal Reserve System and
other provisions of applicable law, the instrument granting an option may, in
the discretion of the Board, permit the exercise price for Shares to be paid by
payment of at least the par value by a combination of cash and Stock as provided
above, and delivery to the Company of the optionholder's promissory note for the
balance of the exercise price. Unless otherwise specified by the Board in the
instrument granting the option, such note (i) shall bear interest at least equal
to the Applicable Federal Rate, as determined under Section 1274(d) of the Code
and published by the Service on a monthly basis, in effect for the month of
exercise, (ii) shall be a fully recourse note, (iii) shall be secured by a
pledge of the Shares acquired by exercising the option, and (iv) shall be
payable in equal annual installments of principal and interest over a period of
not more than five years after the exercise date (except that any such note
shall be payable on demand in the event of termination of employment). Any such
promissory note shall be in a form satisfactory to the Company.
11. NO RIGHTS AS STOCKHOLDER. Optionholders shall not have the rights
of stockholders with regard to options granted under the Plan, except as to
Shares actually purchased pursuant to such options.
12. NON TRANSFERABILITY OF OPTIONS. Each option granted under this Plan
shall be transferable only by will or the laws of descent and distribution and
shall be exercisable during the lifetime of the person to whom the option is
granted only by such person. Except as permitted by the preceding sentence, no
option granted under the Plan or any of the rights and privileges thereby
conferred shall be transferred, assigned, pledged, hypothecated or otherwise
disposed of in any way (by operation of law or otherwise), and no such option,
right or privilege shall be subject to execution, attachment or similar process.
Upon any attempt so to transfer, assign, pledge, hypothecate or otherwise
dispose of any such option, right or privilege contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon such option,
right or privilege, the option and such rights and privileges shall immediately
become null and void. Notwithstanding the above provisions of this Section 12,
any option granted under this Plan may be pledged or hypothecated to secure an
obligation to the Company.
13. TERMINATION OF EMPLOYMENT; DEATH OR DISABILITY.
(a) TERMINATION IN GENERAL. Upon termination of the employment
of an optionholder, any unexercised options shall terminate immediately, except
as provided in Subsections (b), (c) and (d) below. For purposes of this Section
13, employment shall not be considered terminated (i) in the case of sick leave
or other bona fide leave of absence approved for purposes of the Plan by the
Board, so long as the employee's right to re-employment is guaranteed either by
statute or by contract, or (ii) in the case of a transfer of employment among
the Company and its subsidiaries, or to the employment of a corporation (or a
parent or subsidiary corporation of such corporation) issuing or assuming an
option, which in the case of an Incentive Option is a transaction to which
Section 424(a) of the Code applies. For all purposes of this Section 13, the
term "employment" shall include the relationships of optionholders to the
Company as directors, consultants and professional advisors.
<PAGE>
(b) TERMINATION NOT FOR CAUSE. Subject to Section 14(c), if
such termination was not "for cause" (as hereinafter defined), the optionholder
may exercise any option which was otherwise exercisable on the date of
termination for a period ending on the earlier of (i) the last day of the third
month after such termination and (ii) the expiration date of such option
pursuant to the first sentence of Section 7(c). For purposes hereof, the term
"for cause" shall mean only (i) the willful or reckless failure by the
optionholder to perform his duties under or willful or reckless violation of any
written employment or consulting agreement (other than a failure resulting from
the optionholder's death or disability), which failure or violation shall not
have been cured within fifteen (15) days after the receipt by the optionholder
of written notice thereof from the Board specifying with reasonable
particularity such alleged failure or violation; (ii) the commission by the
optionholder of an act of fraud or theft against the Company or any of its
subsidiaries; or (iii) the conviction of the optionholder of (or the plea by the
optionholder of NOLO CONTENDERE to) any felony.
(c) DEATH. If termination of employment results from the
optionholder's death, any option which was otherwise exercisable by such
optionholder as of the time immediately before his or her death shall be
exercisable by the optionholder's estate or by any person who acquired the
options by bequest or inheritance for a period ending on the earlier of (i) one
year after the death of the optionholder and (ii) the expiration date of such
option pursuant to the first sentence of Section 7(c). The Board may permit any
option to be exercised for up to the total number of Shares subject to the
option, or grant an option which by its terms is exercisable for up to the total
number of Shares subject to the option, at any time within one year after the
death of the optionholder, consistent with the above provisions.
(d) DISABILITY. If the termination of employment results from
the optionholder's disability, any option which was otherwise exercisable by
such optionholder immediately prior to the termination of his employment shall
be exercisable by him or her (or his or her legal representative) for a period
ending on the earlier of (i) one year after such termination and (ii) the
expiration date of such option pursuant to the first sentence of Section 7(c).
The Board may permit any option to be exercised for up to the total number of
Shares subject to the option, or grant an option which by its terms is
exercisable for up to the total number of Shares subject to the option, at any
time within one year after termination of employment, consistent with the above
provisions. The term "disability" shall for this purpose be defined as such term
is defined in Section 22(e)(3) of the Code.
14. REORGANIZATIONS; DISSOLUTION.
(a) SUBSTITUTE OPTIONS. If by reason of a corporate merger,
consolidation, acquisition of property or stock, separation, reorganization, or
liquidation the Board shall authorize the issuance or assumption of a stock
option in a transaction to which Section 424(a) of the Code applies, then,
notwithstanding any other provision of the Plan, the Board may grant an option
upon such terms and conditions as it may deem appropriate for the purpose of
assumption of the old option, or substitution of a new option for the old
option, in conformity with the provisions of said Section 424(a) of the Code and
the Regulations thereunder, and any such option shall not reduce the number of
shares otherwise available for issuance under the Plan.
<PAGE>
(b) TERMINATION OF OPTIONS. In the event of a consolidation or
merger in which the Company is not the surviving corporation, a Change in
Control of the Company (as defined below) or the sale or transfer of all or
substantially all the Company's assets, the Board, in its sole discretion, may
(i) accelerate the exercisability, prior to the effective date of such merger,
consolidation, Change in Control or sale of assets, of all outstanding options
granted under the Plan (and redesignate as Nonqualified Options any options or
portions thereof that were originally designated as Incentive Options but that
no longer so qualify under Section 422 of the Code), (ii) arrange, if there is a
surviving or acquiring corporation, subject to consummation of the merger,
consolidation or sale of assets, to have that corporation or an affiliate of
that corporation grant to employees and other optionholders replacement options
with substantially similar or, if not adverse to the optionees, different
provisions with respect to exercisability (upon which grant the options granted
under the Plan shall immediately terminate and be of no further force or effect)
which, however, in the case of Incentive Options, satisfy, in the determination
of the Board, the requirements of Section 424(a) of the Code, (iii) cancel all
outstanding options in exchange for consideration in cash or in kind in an
amount equal to the value of the shares, as determined by the Board in good
faith, the optionee would have received had the option been exercised (to the
extent then exercisable or to a greater extent, including in full, as the Board
may determine) less the option price therefor (upon which cancellation such
options shall immediately terminate and be of no further force or effect), (iv)
permit the purchaser of the Company's stock or assets to deliver to the
optionees the same kind of consideration that is delivered to the stockholders
of the Company in cancellation of such options in an amount equal to the value
of the shares, as determined by the Board in good faith, the optionee would have
received had the option been exercised (to the extent then exercisable or to a
greater extent, including in full, as the Board may determine), less the option
price therefor, or (v) take any combination (or none) of the foregoing actions.
For purposes of this Section 14(b), a "Change in Control" shall be deemed to
have occurred if (i) any person, or group of persons acting together, acquires
in any transaction or related series of transactions such number of shares of
voting securities of the Company as causes such person, or group of persons, to
own beneficially, directly or indirectly, as of the time immediately after such
transaction or series of transactions, fifty percent (50%) or more of the
outstanding voting securities of the Company and (ii) such person, or group of
persons, owned beneficially, directly and indirectly, less than fifty percent
(50%) of such outstanding voting securities as of the time immediately before
such transaction or series of transactions.
(c) DISSOLUTION OR LIQUIDATION. Upon the dissolution or
liquidation of the Company, all outstanding options granted under the Plan shall
terminate, but each optionee shall have the right, immediately prior to such
dissolution or liquidation, to exercise his or her options to the extent then
exercisable.
<PAGE>
15. EMPLOYMENT RIGHTS AND OTHER BENEFITS. Neither the adoption of the
Plan nor the grant of options shall confer upon any employee any right to
continued employment with the Company or any parent or subsidiary or affect in
any way the right of the Company or such parent or subsidiary to terminate the
employment of an employee at any time. Except as specifically provided by the
Board in any particular case, the loss of existing or potential profit in
options granted under this Plan shall not constitute an element of damages in
the event of termination of the employment of an employee even if the
termination is in violation of an obligation of the Company to the employee by
contract or otherwise. Nothing in this Plan shall restrict the authority of the
Board to grant stock options or to award bonuses or other benefits to employees
or others otherwise than pursuant to the Plan.
16. DISCONTINUANCE, CANCELLATION, AMENDMENT AND TERMINATION. The Board
may at any time abandon the Plan or discontinue granting options under the Plan.
With the consent of the optionholder, the Board may at any time cancel an
existing option in whole or in part and grant another option for such number of
shares as the Board specifies. The Board may at any time amend the Plan for the
purpose of satisfying the requirements of Section 422 of the Code or of any
changes in applicable laws or regulations or for any other purpose which may at
the time be permitted by law, or may at any time terminate the Plan as to any
further grants of options, provided that (except to the extent expressly
required or permitted herein above) no such amendment shall, without the
approval of the stockholders of the Company by at least a majority vote at a
duly held meeting (or by written consent as provided by applicable law), (a)
increase the maximum number of shares for which options may be granted under the
Plan, (b) change the group of employees eligible to receive options under the
Plan, (c) reduce the price at which Incentive Options may be granted, (d) extend
the time within which options may be granted, (e) alter the Plan in such a way
that Incentive Options already granted hereunder would not be considered
Incentive Options under Section 422 of the Code, (f) amend the provisions of
this Section 16, or (g) make any other change in the Plan which requires
stockholder approval under applicable law or regulations, including any approval
requirement which is a prerequisite for exemptive relief under Section 16 of the
Securities and Exchange Act of 1934. The termination or any modification or
amendment of the Plan shall not adversely affect the rights of any optionholder
under any option previously granted without his or her consent.
17. COMPLIANCE WITH RULE 16B-3. It is intended that the provisions of
this Plan and any option granted thereunder to a person subject to the reporting
requirements of Section 16(a) of the Securities and Exchange Act of 1934, as
amended, shall comply in all respects with the terms and conditions of Rule
16b-3 promulgated under such Act or any successor provisions thereto. Any
agreement granting options shall contain such provisions as are necessary or
appropriate to assure such compliance. To the extent that any provision hereof
is found not to be in compliance with such Rule, such provision shall be deemed
to be modified so as to be in compliance with such Rule or, if such modification
is not possible, shall be deemed to be null and void, as it relates to a
recipient subject to Section 16(a) of the Securities and Exchange Act of 1934,
as amended.
OPINION.WPD
May 12, 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 15,774 shares (the "Shares") of its
common stock, par value $0.01 per share (the "Common Stock"), issuable upon
exercise of stock options granted pursuant to the Bright Tiger Technologies,
Inc. 1996 Stock Option Plan (the "Stock Option Plan"). The Company acquired
Bright Tiger Technologies, Inc. ("Bright Tiger") on April 12, 1999, and in
connection with this acquisition the Company assumed Bright Tiger's obligations
under the Stock Option Plan and options issued under the Stock Option 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 Option Plan.
<PAGE>
Allaire Corporation
May 12, 1999
Page 2
OPINION.WPD
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 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 Option Plan 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
a Partner
<PAGE>
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
May 11, 1999
