As filed with the Securities and Exchange Commission on November 24, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OMEGA RESEARCH, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 59-2223464
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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8700 WEST FLAGLER STREET
MIAMI, FLORIDA 33174
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE, INCLUDING ZIP CODE)
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OMEGA RESEARCH, INC.
AMENDED AND RESTATED 1996 INCENTIVE STOCK PLAN
OMEGA RESEARCH, INC.
1997 EMPLOYEE STOCK PURCHASE PLAN
OMEGA RESEARCH, INC.
1997 NONEMPLOYEE DIRECTOR
STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
WILLIAM R. CRUZ AND RALPH L. CRUZ
CO-CHIEF EXECUTIVE OFFICERS
OMEGA RESEARCH, INC.
8700 WEST FLAGLER STREET
MIAMI, FLORIDA 33174
(NAME AND ADDRESS OF AGENTS FOR SERVICE)
(305) 551-9991
(TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENTS FOR SERVICE)
-------------------
COPY TO:
ALAN D. AXELROD, ESQ.
RUBIN BAUM LEVIN CONSTANT FRIEDMAN & BILZIN
2500 FIRST UNION FINANCIAL CENTER
200 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131-2336
(305) 374-7580
-------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
PROPOSED PROPOSED MAXIMUM
AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 3,675,000 $5.906 $21,704,550 $6,578
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</TABLE>
(1) Includes 3,000,000 shares issuable under the Omega Research, Inc.
Amended and Restated 1996 Incentive Stock Plan, 500,000 shares issuable
under the Omega Research, Inc. 1997 Employee Stock Purchase Plan and
175,000 shares issuable under the Omega Research, Inc. 1997 Nonemployee
Director Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h) under the Securities Act of
1933, as amended, based upon an average of the high and low prices
reported on The Nasdaq Stock Market on November 19, 1997.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
*With respect to each Plan under which shares of Common Stock, $0.01 par
value, of the Registrant are being registered hereunder, the document(s)
containing the information specified in this Part I will be sent or given to the
applicable participants as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the "Securities Act"). Such documents will not be filed
with the Securities and Exchange Commission (the "Commission") either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this Registration Statement, taken together, shall constitute a
prospectus which meets the requirements of Section 10(a) of the Securities Act.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information previously filed with the
Commission:
1. The Registrant's Prospectus forming part of the Registrant's
Registration Statement on Form S-1 (File No. 333-32077) declared effective by
the Commission on September 30, 1997, which Prospectus was filed with the
Commission pursuant to Rule 424(b) under the Securities Act and which contains
the Registrant's audited financial statements for the fiscal years ended
December 31, 1994, 1995 and 1996 and the unaudited financial statements for the
six months ended June 30, 1997 (the "Prospectus");
2. The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1997; and
3. The description of the Registrant's Common Stock to be offered hereby
which is contained in its Registration Statement on Form 8-A (File No.
000-22895) filed with the Commission and declared effective on September 30,
1997, including any amendments or reports filed for the purpose of updating such
description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby 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 a part hereof
from the date of filing of such documents.
Except as superseded or modified herein, any statement contained in any
document incorporated by reference herein or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the validity of the shares of
Common Stock offered hereby are being passed upon for the Registrant by Rubin
Baum Levin Constant Friedman & Bilzin ("Rubin Baum"), Miami, Florida. Marc J.
Stone, the Registrant's Vice President of Corporate Planning and Development,
General Counsel and Secretary and a director, is currently of counsel to Rubin
Baum and was previously a partner at that firm.
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<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act (the "Statute")
sets forth conditions and limitations governing the indemnification of officers,
directors and other persons.
Article TWELFTH of the Second Amended and Restated Articles of
Incorporation (the "Articles") and Article IX of the Second Amended and Restated
Bylaws (the "Bylaws") of the Registrant contain certain indemnification
provisions adopted pursuant to authority contained in the Statute. The Articles
contain a provision eliminating the personal liability of its directors for
monetary damages resulting from breaches of their fiduciary duty to the extent
permitted by the Statute. Under the Bylaws, the Registrant will indemnify any
person who is or was a director or officer of the Registrant, and may indemnify
a person who is or was an employee or agent of the Registrant, or who is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against: (a) liability incurred in connection with any proceeding
(other than an action by or in the right of the Registrant) to which such person
was or is a party by reason of acting in any such capacity, and (b) expenses and
amounts paid in settlement (not exceeding, in the judgment of the Registrant's
board of directors, the estimated expense of litigating the proceeding to
conclusion) actually and reasonably incurred in connection with the defense or
settlement of any proceeding by or in the right of the Registrant to procure a
judgment in its favor to which such person was or is a party by reason of acting
in any such capacity, provided that: (i) such person acted in good faith and in
a manner he reasonably believed to be in, or not opposed to, the best interests
of the Registrant and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; and (ii) no
indemnification shall be made in respect of any claim, issue or matter in any
proceeding by or in the right of the Registrant as to which such person shall
have been adjudged to be liable unless, and only to the extent that, the court
in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses as the court shall
deem proper. For purposes of Article IX of the Bylaws: (A) the term "expenses"
includes counsel fees, including those for appeal; (B) the term "liability"
includes obligations to pay a judgment, settlement, penalty, fine (including an
excise tax assessed with respect to any employee benefit plan), and expenses
actually and reasonably incurred with respect to a proceeding; and (C) the term
"proceeding" includes any threatened, pending or completed action, suit or other
type of proceeding, whether civil, criminal, administrative or investigative,
and whether formal or informal.
Under the Bylaws, to the extent a director or officer of the Registrant,
or an employee or agent of the Registrant which the Registrant has elected to
indemnify, has been successful on the merits or otherwise in defense of any
proceeding described above, or in the defense of any claim, issue or matter
therein, such person shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith. For all other
indemnification which may be provided under the Bylaws in connection with any
proceeding, unless made pursuant to a determination by a court, indemnification
shall be made only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the director, officer,
employee or agent has met the applicable standard of conduct set forth in the
Bylaws, which determination shall be made: (a) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
proceeding; (b) if such quorum is not obtainable, or even if obtainable, by
majority vote of a committee duly designated by the board of directors
consisting solely of two or more directors not at the time parties to the
proceeding; (c) by independent legal counsel selected by the board of directors
or a committee thereof as prescribed by the Statute; or (d) by the shareholders
by
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<PAGE>
majority vote of a quorum consisting of shareholders who were not parties to
such proceeding or if such a quorum is not obtainable, by a majority vote of
shareholders who were not parties to such proceeding. Evaluation as to
reasonableness of expenses and authorization of indemnification must be made in
the same manner as the determination that indemnification is permissible, except
that if the determination of permissibility is made by independent legal
counsel, then the board of directors or the committee thereof which appointed
such legal counsel must evaluate the reasonableness of expenses. The Bylaws also
permit the Registrant to pay expenses incurred by its officers, directors,
employees and agents in advance of the final disposition of a proceeding,
provided that the Registrant may advance expenses to a director or officer only
after receiving an undertaking by or on behalf of such director or officer to
repay such amount if he is ultimately found not to be entitled to
indemnification pursuant to the Bylaws.
The Registrant has entered into agreements to indemnify its directors
and executive officers, in addition to the indemnification provided for in the
Registrant's Articles and Bylaws. These agreements, among other things,
indemnify the Registrant's directors and officers for all direct and indirect
expenses and costs (including, without limitation, all reasonable attorneys'
fees and related disbursements, other out-of-pocket costs and reasonable
compensation for time spent by such persons for which they are not otherwise
compensated by the Registrant or any third person) and liabilities of any type
whatsoever (including, but not limited to, judgments, fines and amounts paid in
settlement) actually and reasonably incurred by such person in connection with
either the investigation, defense, settlement or appeal of any threatened,
pending or completed action, suit or other proceeding, including any action by
or in the right of the corporation, arising out of such person's services as a
director, officer, employee or other agent of the Registrant, any subsidiary of
the Registrant or any other company or enterprise to which the person provides
services at the request of the Registrant. The Registrant believes that these
provisions and agreements are necessary to attract and retain talented and
experienced directors and officers.
The Registrant has obtained liability insurance for the benefit of its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE>
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
4.1 Second Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 declared
effective on September 30, 1997 (File No. 333-32077), as
amended (the "S-1 Registration Statement")).
4.2 Second Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to the S-1
Registration Statement).
4.3 Omega Research, Inc. Amended and Restated 1996 Incentive Stock
Plan (incorporated by reference to Exhibit 10.1 to the S-1
Registration Statement).
4.4 Omega Research, Inc. 1997 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.8 to the S-1
Registration Statement).
4.5 Omega Research, Inc. 1997 Nonemployee Director Stock Option
Plan (incorporated by reference to Exhibit 10.2 to the S-1
Registration Statement).
5.1 Opinion of Rubin Baum Levin Constant Friedman & Bilzin
regarding the legality of Common Stock.*
23.1 Consent of Rubin Baum Levin Constant Friedman & Bilzin
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP*
24.1 Power of Attorney (see page II-7).
- -----------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which,
II-4
<PAGE>
individually or in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (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 Section 15(d) of the
Securities Exchange Act of 1934, as amended, that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) 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 that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(b) 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
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<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 Miami, State of Florida, on November 24, 1997.
OMEGA RESEARCH, INC.
By: /s/ WILLIAM R. CRUZ
-----------------------------------------
William R. Cruz
Co-Chairman of the Board of Directors and
Co-Chief Executive Officer
By: /s/ RALPH L. CRUZ
-----------------------------------------
Ralph L. Cruz
Co-Chairman of the Board of Directors and
Co-Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of Omega Research, Inc., do
hereby constitute and appoint William R. Cruz, Ralph L. Cruz, Marc J. Stone and
Salomon Sredni, and each of them, our true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, for each of us
and in our 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 other 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 requisite and necessary to be done
in connection therewith and about the premises, as fully to all intents and
purposes as each of us might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
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/ WILLIAM R. CRUZ Co-Chairman of the Board of November 24, 1997
- ------------------------ Directors and Co-Chief Executive
William R. Cruz Officer (Co-Principal Executive
Officer)
/s/ RALPH L. CRUZ Co-Chairman of the Board of November 24, 1997
- ------------------------ Directors and Co-Chief Executive
Ralph L. Cruz Officer (Co-Principal Executive
Officer)
/s/ SALOMON SREDNI Vice President of Operations, Chief November 24, 1997
- ------------------------ Financial Officer and Director
Salomon Sredni (Principal Financial and Accounting
Officer)
/s/ PETER A. PARANDJUK Director November 24, 1997
- ------------------------
Peter A. Parandjuk
/s/ MARC J. STONE Director
- ------------------------
Marc J. Stone November 24, 1997
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DOCUMENT
------- --------
4.1 Second Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 declared
effective filed on September 30, 1997 (File No. 333-32077), as
amended (the "S-1 Registration Statement")).
4.2 Second Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.2 to the S-1
Registration Statement).
4.3 Omega Research, Inc. Amended and Restated 1996 Incentive Stock
Plan (incorporated by reference to Exhibit 10.1 to the S-1
Registration Statement).
4.4 Omega Research, Inc. 1997 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.8 to the S-1
Registration Statement).
4.5 Omega Research, Inc. 1997 Nonemployee Director Stock Option
Plan (incorporated by reference to Exhibit 10.2 to the S-1
Registration Statement).
5.1 Opinion of Rubin Baum Levin Constant Friedman & Bilzin
regarding the legality of Common Stock.*
23.1 Consent of Rubin Baum Levin Constant Friedman & Bilzin
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP*
24.1 Power of Attorney (see page II-7).
- -----------------
* Filed herewith.
EXHIBIT 5.1
RUBIN BAUM LEVIN CONSTANT FRIEDMAN & BILZIN
2500 First Union Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2336
November 24, 1997
Omega Research, Inc.
8700 West Flagler Street
Miami, Florida 33174
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on the date hereof (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 3,675,000 shares
(the "Shares") of your Common Stock, $0.01 par value per share. The Shares are
reserved for issuance under the Omega Research, Inc. Amended and Restated 1996
Incentive Stock Plan, the Omega Research, Inc. 1997 Employee Stock Purchase Plan
and the Omega Research, Inc. 1997 Nonemployee Director Stock Option Plan. As
your legal counsel, we have examined the proceedings taken and are familiar with
the proceedings proposed to be taken by you in connection with the issuance and
sale of the Shares.
It is our opinion that, when issued and sold in the manner described in
the Registration Statement and the related prospectuses, the Shares will be
legally and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
/s/ RUBIN BAUM LEVIN CONSTANT FRIEDMAN & BILZIN
-----------------------------------------------
Rubin Baum Levin Constant Friedman & Bilzin
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Form S-8 Registration Statement of our report
dated March 28, 1997, included in Omega Research, Inc.'s Form S-1 Registration
Statement (No. 333-32077) for the year ended December 31, 1996, and to all
references to our Firm included in this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
-----------------------
Arthur Andersen LLP
Miami, Florida
November 24, 1997
