<PAGE> 1
Registration No. 333-xxxxx
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Cayenne Software, Inc.
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(Exact name of issuer as specified in its charter)
Massachusetts 04-2784044
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8 New England Executive Park, Burlington, MA 01803
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(Address of principal executive offices) (Zip Code)
Cayenne Software, Inc.
Amended 1996 Incentive and Nonqualified Stock Option Plan
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(Full title of the Plan)
Peter J. Boni, President
Cayenne Software, Inc.
8 New England Executive Park
Burlington, MA 01803
(617) 273-9003
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
John D. Patterson, Jr., Esquire
Foley, Hoag & Eliot
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed maximum
securities Amount maximum aggregate Amount of
to be to be offering price offering registration
registered registered per share price fee
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<S> <C> <C> <C> <C>
Common Stock 2,000,000 $3.375 $6,750,000 $2,045.45
(par value $.01) shares
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</TABLE>
(1)Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h), based on the reported high and low prices on the
NASDAQ National Market System on May 16, 1996.
<PAGE> 2
PROSPECTUS
CAYENNE SOFTWARE, INC.
8 New England Executive Park
Burlington, MA 01803
(617) 273-9003
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS
COVERING SECURITIES THAT HAVE BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933
MAY __, 1997
INTRODUCTION
------------
This Prospectus relates to 2,000,000 shares of Common Stock, par value
$0.01 per share (the "Common Stock"), offered to key employees, officers and
directors of, and individuals providing services to, Cayenne Software, Inc. (the
"Company") under the Company's Amended 1996 Incentive and Nonqualified Stock
Option Plan (the "1996 Plan").
THE PLAN
--------
Purpose
- -------
The purpose of the 1996 Plan is to provide additional incentive to
executives and other key employees of the Company and its subsidiaries.
The 1996 Plan authorizes the grant of (i) options to purchase Common Stock
intended to qualify as incentive stock options ("Incentive Options"), as defined
in Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"),
and (ii) options that do not so qualify ("Nonqualified Options").
Up to 2,000,000 shares of Common Stock (subject to adjustment upon certain
changes in the capitalization of the Company) may be issued pursuant to options
granted under the 1996 Plan.
Creation, Duration, Modification and Termination
- ------------------------------------------------
The Company's Board of Directors adopted the 1996 Plan in July 1996 and
approved an amendment in October 1996. The stockholders approved the 1996 Plan
as amended at the special meeting in lieu of annual meeting of stockholders on
November 20, 1996.
No options may extend for more than ten years from the date of grant (five
years in the case of an optionee who owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any parent or subsidiary ("greater-than-ten-percent-stockholders")). No
incentive option may be granted under the 1996 Plan more than ten years after
the date of the Plan's adoption.
Administration
- --------------
The 1996 Plan will be administered by the Compensation Committee of the
Board of Directors, the members of which are not officers or employees of the
Company (the "Committee"). The Committee will select the individuals to whom
options are granted and will determine the option exercise price and other terms
of each award, subject to the provisions of the 1996 Plan. Participants
1
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may obtain additional information about the 1996 Plan or the Compensation
Committee by calling or writing to the Vice President, Human Resources, Cayenne
Software, Inc., 8 New England Executive Park, Burlington, MA 01803, telephone
(617) 273-9003. The members of the Committee serve at the pleasure of the Board
of Directors. The Committee members may own shares of Common Stock of the
Company as well as options to purchase shares of Common Stock under the 1996
Plan or other plans.
Participation
- -------------
Incentive Options may be granted under the 1996 Plan to employees,
including officers and Directors who are also employees. As of September 1,
1996, approximately 375 employees were eligible to participate in the 1996 Plan.
Nonqualified Options may be granted under the 1996 Plan to employees, officers,
individuals providing services to the Company and Directors, whether or not they
are employees of the Company.
Exercise of Options; Payment of Exercise Price
- ----------------------------------------------
Each option granted under the Plan may be exercised, so long as it is valid
and outstanding, from time to time in part or as a whole, subject to any
limitations with respect to the number of shares for which the option may be
exercised at a particular time and to such other conditions as the Committee in
its discretion may specify upon granting the option.
The exercise price of Incentive Options granted under the 1996 Plan must be
at least equal to the fair market value of the Common Stock on the date of grant
(110% of fair market value in the case of a greater-than-ten-percent-
stockholder). The aggregate fair market value (determined at the time of grant)
of shares issuable pursuant to Incentive Options which first become exercisable
by an employee or officer in any calendar year may not exceed $100,000.
Payment of the exercise price of the shares subject to the option may be
made with (i) cash or check for an amount equal to the option price for such
shares, (ii) with the consent of the Committee, shares of Common Stock having a
fair market value equal to the option price of such shares, (iii) with the
consent of the Committee, a personal recourse note issued by the optionee to the
Company in a principal amount equal to such aggregate exercise price, (iv) with
the consent of the Committee, delivery of such documentation as the Committee
and the broker, if applicable, will require to effect an exercise of the option
and delivery to the Company of the sale or loan proceeds required to pay the
option price, (v) with the consent of the Committee, such other consideration
which is acceptable to the Committee and has a fair market value equal to the
option price of such shares, or (vi) with the consent of the Committee, a
combination of the foregoing.
Resale Restrictions
- -------------------
This Prospectus does not cover resales by affiliates of the Company, as
defined in the Act, of shares of the Common Stock purchased under either Plan.
Resales by affiliates of Common Stock purchased under either Plan will be
subject to the restrictions thereon imposed by the Act, and offers and sales by
affiliates may be made only pursuant to an effective registration statement
under the Act or an exemption from the registration requirements of the Act.
Officers, directors and beneficial owners of greater than 10% of the
outstanding shares of Common Stock who have been granted options under the 1988
Plan may be subject to Section 16 of the Securities Exchange Act of 1934 and to
the rules promulgated thereunder. Such persons should consult their tax,
accounting and legal advisors with respect to options granted to them
2
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under the 1988 Plan and the acquisition and disposition of shares of Common
Stock obtained upon exercise of such options.
United States Income Tax Information
- ------------------------------------
The grantee of a Nonqualified Option recognizes no income for federal
income tax purposes on the grant thereof. On the exercise of a Nonqualified
Option, the difference between the fair market value of the underlying shares of
Common Stock on the exercise date and the option exercise price is treated as
compensation to the holder of the option taxable as ordinary income in the year
of exercise, and such fair market value becomes the basis for the underlying
shares which will be used in computing any capital gain or loss upon disposition
of such shares. Subject to certain limitations, the Company may deduct for the
year of exercise an amount equal to the amount recognized by the option holder
as ordinary income upon exercise of a Nonqualified Option.
The grantee of an Incentive Option recognizes no income for federal income
tax purposes on the grant thereof. Except as provided below with respect to the
alternative minimum tax, there is no tax upon exercise of an Incentive Option.
If no disposition of shares acquired upon exercise of the Incentive Option is
made by the option holder within two years from the date of the grant of the
Incentive Option or within one year after exercise of the Incentive Option, any
gain realized by the option holder on the subsequent sale of such shares is
treated as a long-term capital gain for federal income tax purposes. If the
shares are sold prior to the expiration of such periods, the difference between
the lesser of the value of the shares at the date of exercise or at the date of
sale and the exercise price of the Incentive Option is treated as compensation
to the employee taxable as ordinary income and the excess gain, if any, is
treated as capital gain (which will be long-term capital gain if the shares are
held for more than one year).
The excess of the fair market value of the underlying shares over the
option price at the time of exercise of an Incentive Option will constitute an
item of tax preference for purposes of the alternative minimum tax. Taxpayers
who incur the alternative minimum tax are allowed a credit which may be carried
forward indefinitely to be used as a credit against the regular tax liability in
a later year; however, the minimum tax credit can not reduce the regular tax
below the alternative minimum tax for that carryover year.
In connection with the sale of the shares covered by Incentive Options, the
Company is allowed a deduction for tax purposes only to the extent, and at the
time, the option holder receives ordinary income (for example, by reason of the
sale of shares by the holder of an Incentive Option within two years of the date
of the granting of the Incentive Option or one year after the exercise of the
Incentive Option), subject to certain limitations on the deductibility of
compensation paid to executives.
Assignment of Interests Under the Plan; Withdrawal From the Plan
- ----------------------------------------------------------------
Options are non-transferable except by will or by the laws of descent or
distribution and are exercisable, during the optionee's lifetime, only by the
optionee. Incentive Options generally may not be exercised after (i) termination
of the optionee's employment by optionee voluntarily or by the Company for
cause, (ii) ninety days after termination of the optionee's employment by the
Company without cause, including optionee's retirement in accordance with the
Company's policy and (iii) one year following the optionee's termination of
employment with the Company by reason of death or disability. The terms and
conditions of Nonqualified Options will be determined by the Committee in
connection with each grant, if any.
3
<PAGE> 5
Charges and Deductions, and Liens Therefor
- ------------------------------------------
The 1996 Plan does not provide that any person has or may create a lien on
any funds, securities, or other property held under the Plan.
Availability of Documents Incorporated by Reference
- ---------------------------------------------------
A copy of any document incorporated by reference in Item 3 of Part II of
the Registration Statement of which this Prospectus is a part (not including
exhibits), such documents incorporated by reference constituting a prospectus
under Section 10(a) of the Act, and any other documents required to be delivered
to employees pursuant to Rule 428(b) promulgated under the Act will be provided
to any option holder by the Company upon written or oral request to the
Company's Chief Financial Officer, Cayenne Software, Inc., 8 New England
Executive Park, Burlington, MA 01803, (617) 273-9003.
4
<PAGE> 6
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) The Company's Annual Report, as amended, (Form 10K) for the transition
period ended December 31, 1996, File No. 0-19682.
(b) The Company's Quarterly Report (Form 10-Q) for the three months ended
March 31, 1997, File No. 0-19682.
(c) The description of Common Stock included in the Company's Registration
Statement on Form S-1, File No. 33-43401. All documents subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, 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
the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraph D of Article 6 of the Company's Articles provides that, to the
maximum extent permitted by Massachusetts law (as the same exists or is
subsequently amended), no director shall be personally liable to the Company or
any of its stockholders for monetary damages arising out of the director's
breach of fiduciary duty as a director of the Company. Section 13(b)(l 1/2) of
the Massachusetts BCL provides that a Massachusetts corporation's articles of
organization may state a provision eliminating or limiting the personal
liability of a director to a corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
may not eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under specified sections of the Massachusetts
BCL establishing the liability of directors for certain unauthorized
distributions and loans to insiders or (iv) for any transaction from which the
director derived an improper personal benefit.
Section 6 of Article VII of the the Company's By-Laws provides that the
Company shall, to the extent legally permissible, indemnify each of its
directors and officers (including persons who serve at its request as directors,
officers or trustees of any organization in which the Company has an interest as
a stockholder, creditor or otherwise), against all liabilities and expenses
reasonably incurred by such persons in connection with the defense or
disposition of any action, suit or proceeding in which they may be involved or
with which they may be threatened by reason of being or having been such a
director or officer, except with respect to any matter as to which they shall
have been adjudicated not to have acted in good faith in the reasonable belief
that their action was in the best interests of the Company. Section 67 of the
Massachusetts BCL authorizes a Massachusetts corporation to indemnify its
directors, officers, employees and other agents unless such person shall have
been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that such action was in the best interests of the corporation.
The effect of these provisions would be to permit indemnification by the
Company for, among other liabilities, (a) liabilities arising out of the
Securities Act in connection with this Registration Statement (see Item 9
below).
Section 67 of the Massachusetts BCL also affords a Massachusetts
corporation the power to obtain insurance on behalf of its directors, officers,
employees and agents against liabilities incurred by them in those capacities or
out of their status as such, whether or not the corporation would have the power
to indemnify them against those liabilities. The Company has procured a
directors' and officers' liability and company reimbursement liability insurance
policy that (a) insures directors and officers of the Company against losses (in
excess of a deductible amount) arising from certain claims made against them by
reason of certain acts done or attempted by such directors or officers and (b)
insures the Company against losses (in excess of a deductible amount) arising
from any such claims, but only if the Company is required or permitted to
indemnify such directors or officers for such losses under statutory or common
law or under provisions of the Company's articles of organization or by-laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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4.1 Restated Articles of Organization of the Company, incorporated by
reference to the Exhibits to the Company's Registration Statement on Form
S-1, File No. 33-45841.
4.2 Amended and Restated By-Laws of the Company, incorporated by reference to
the Exhibits to the Company's Registration Statement on Form S-1, File
No. 43401.
4.3 Amended 1996 Incentive and Non-Qualified Stock Option Plan.
5.1 Opinion of Counsel.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Counsel (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 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.
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;
(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 by the Registrant pursuant to
Section 13 or Section 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 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.
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(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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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 Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Burlington, Massachusetts, on January
31, 1997.
CAYENNE SOFTWARE, INC.
By: /s/Frederick H. Phillips
----------------------------------------
Frederick H. Phillips
Vice President, Finance and Administration
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Frederick H. Phillips and Eugene J.
DiDonato, 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 he 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 their or his substitute or
substitutes, 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.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/Peter J. Boni President and January 31,1997
- ----------------------------- Chief Executive Officer,
Peter J. Boni Director
/s/Frederick H. Phillips Treasurer and Chief Financial January 31,1997
- ----------------------------- Officer
Frederick H. Phillips (Principal Financial and
Accounting Officer)
/s/Charles W. Bachman Chairman of the Board January 31,1997
- ----------------------------- of Directors
Charles W. Bachman
/s/John J. Alexander Director January 31,1997
- -----------------------------
John J. Alexander
/s/R. John Fletcher Director January 31,1997
- -----------------------------
R. John Fletcher
/s/Roland Pampel Director January 31,1997
- -----------------------------
Roland Pampel
/s/Allyn C. Woodward, Jr. Director January 31,1997
- -----------------------------
Allyn C. Woodward, Jr.
<PAGE> 11
- ----------------------------- Director January _ ,1997
William H. D. Goddard.
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<PAGE> 1
EXHIBIT 4.3
CAYENNE SOFTWARE, INC.
AMENDED 1996 INCENTIVE AND NONQUALIFIED STOCK OPTION PLAN
SECTION 1. PURPOSE OF THE PLAN.
This Amended 1996 Incentive and Nonqualified Stock Option Plan (the "Plan") of
Cayenne Software, Inc., a Massachusetts corporation (the "Company"), is designed
to provide additional incentive to present and future executives, key employees
and consultants of the Company, which shall include its subsidiaries as defined
in Section 424 of the Internal Revenue Code of 1986, as amended (the "Code").
The Company intends that this purpose will be effected by the granting of
incentive stock options ("Incentive Stock Options") as defined in Section 422 of
the Code and nonqualified stock options ("Nonqualified Options") under the Plan
which afford such executives, key employees and consultants an opportunity to
acquire or increase their proprietary interest in the Company through the
acquisition of shares of its Common Stock, $ .01 par value (the "Common Stock").
By encouraging stock ownership by such executives, salaried employees and
consultants, the Company seeks to attract and retain on a continuing basis the
services of persons of exceptional competence and seeks to furnish an added
incentive for them to increase their efforts on behalf of the Company.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by the Board of Directors (the "Board") or a
committee of the Board (the "Committee") consisting of at least two directors.
All questions of interpretation and application of the Plan, of Incentive Stock
Options and Nonqualified Options granted hereunder (collectively, the "Options",
and individually, an "Option"), and of the value of shares of Common Stock
subject to an Option, shall be subject to the determination of the Committee,
which determination shall be final and binding; provided, however, that the
Committee shall not modify, extend or renew any Incentive Stock Option.
SECTION 3. OPTION SHARES.
The stock subject to the Options and other provisions of the Plan shall be
shares of the Company's Common Stock. The total amount of the Common Stock with
respect to which Options may be granted shall not exceed in the aggregate
2,000,000 shares; provided, however, that the class and aggregate number of
shares which may be subject to Options granted hereunder shall be subject to
adjustment in accordance with the provisions of Section 16 hereof. Such shares
may be treasury shares or authorized but unissued shares.
In the event that any outstanding Option for any reason shall expire or
terminate prior to exercise, the shares of Common Stock allocable to the
unexercised portion of such Option may again be subject to an Option under the
Plan.
SECTION 4. AUTHORITY TO GRANT OPTIONS.
The Committee may grant Options from time to time to such eligible
employees and consultants of the Company as it shall determine. Subject to any
applicable limitations set forth in the Plan or established from time to time by
the Committee, the number of shares of Common Stock to be covered by any Option
shall be as determined by the
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Committee.
SECTION 5. LIMITATION ON AMOUNT OF OPTIONS WHICH MAY BE GRANTED.
The aggregate fair market value (determined at the time the Option is granted)
of the Common Stock with respect to which Incentive Stock Options are
exercisable for the first time by any optionee during any calendar year (under
the Plan and any other plans of the Company or any parent or subsidiary for the
issuance of Incentive Stock Options) shall not exceed $100,000 (or such greater
amount as may from time to time be permitted with respect to incentive stock
options by the Code or any other applicable law or regulation).
SECTION 6. ELIGIBILITY.
Incentive Stock Options may be granted only to officers and other employees of
the Company or its subsidiaries, including members of the Board who are also
employees of the Company or its subsidiaries. Nonqualified Options may be
granted to officers or other employees of the Company or its subsidiaries, to
members of the Board (regardless of whether they are also employees) and to
consultants and other individuals providing services to the Company or its
subsidiaries.
No Incentive Stock Option shall be granted to an individual who, at the time
said Option is granted, owns (including ownership attributed pursuant to Section
424 of the Code) more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any subsidiary or parent (a
"greater-than-ten-percent-stockholder"); notwithstanding the above, a
greater-than-ten-percent-stockholder may be granted an Incentive Stock Option
provided that the purchase price per share shall not be less than one hundred
and ten percent (110%) of the fair market value of the stock at the time such
Option is granted, and further provided that no such Option shall be exercisable
to any extent after the expiration of five (5) years from the date it is
granted.
Except as otherwise provided, for all purposes of the Plan the term "subsidiary"
shall mean any corporation of which 50% or more of its outstanding voting stock
is at the time owned by the Company or by one or more subsidiaries or by the
Company and one or more subsidiaries.
SECTION 7. OPTION PRICE.
The price at which shares may be purchased pursuant to Options shall be
specified by the Committee at the time the Option is granted; provided, however,
that the option price of any Incentive Stock Option shall not be less than one
hundred percent (100%) (one hundred and ten percent (110%) in the case of a
greater-than-ten-percent-stockholder) of the fair market value of the shares of
Common Stock on the date such Option is granted. For the purpose of the Plan,
the fair market value of the Common Stock shall be the closing price per share
on the date of grant of the Option as reported by a nationally recognized stock
exchange, or, if the Common Stock is not listed on such an exchange, as reported
by the National Association of Securities Dealers Automated Quotation System,
Inc. ("NASDAQ"), or, if the Common Stock is not quoted on NASDAQ, the fair
market value as determined by the Committee.
SECTION 8. DURATION OF OPTIONS.
The Committee in its discretion may provide that an Option shall be exercisable
during any specified period of time from the date such Option is granted;
provided, however, that no Incentive Stock Option shall be exercisable after the
expiration of ten (10) years (five years
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<PAGE> 3
in the case of a greater-than-ten-percent-stockholder) from the date that such
Option is granted.
SECTION 9. AMOUNT EXERCISABLE; VESTING OF SHARES PURCHASED; REPURCHASE OF
UNVESTED SHARES; RESTRICTION ON TRANSFER OF CERTAIN SHARES.
Each Option may be exercised, so long as it is valid and outstanding, from time
to time in part or as a whole, subject to any limitations with respect to the
number of shares for which the Option may be exercised at a particular time and
to such other conditions as the Committee in its discretion may specify upon
granting the Option.
The Committee may in its discretion provide upon the grant of any Option
hereunder that the Company shall have an option to repurchase, upon such terms
and conditions as determined by the Committee, all or any number of shares
purchased upon exercise of such Option. The repurchase price per share payable
by the Company shall be such amount or be determined by such formula as is fixed
by the Committee at the time the Option for the shares subject to repurchase is
granted. In the event the Committee shall grant Options subject to the Company's
repurchase option, such Option shall carry a legend satisfactory to counsel for
the Company referring to the Company's repurchase option.
The shares of stock issuable upon exercise of an Option by any executive
officer, director or beneficial owner of more than ten percent (10%) of the
Common Stock of the Company may not be sold or transferred (except that such
shares may be issued upon exercise of such Option) by such officer, director or
beneficial owner for a period of six (6) months following the grant of such
Option.
SECTION 10. EXERCISE OF OPTIONS.
Subject to the provisions of Section 13 hereof, Options shall be exercised by
the delivery of written notice to the Company setting forth the number of shares
with respect to which the Option is to be exercised, and specifying the address
to which the certificates for such shares are to be mailed, together with (a)
cash, certified check, bank draft or postal or express money order payable to
the order of the Company for an amount equal to the option price of such shares;
or (b) with the consent of the Company, shares of Common Stock of the Company
having a fair market value equal to the option price of such shares; or (c) with
the consent of the Committee, a personal recourse note issued by the optionee to
the Company in a principal amount equal to such aggregate exercise price and
with such other terms, including interest rate and maturity, as the Committee
may determine in its discretion; provided that the interest rate borne by such a
note shall not be less than the lowest applicable federal rate, as defined in
Section 1274(d) of the Code; or (d) with the consent of the Committee, such
other consideration that is acceptable to the Committee and that has a fair
market value, as determined by the Committee, equal to such aggregate exercise
price, including any broker-directed cashless exercise/resale procedure adopted
by the Committee; or (e) with the consent of the Company, a combination of any
of the foregoing. For the purpose of the preceding sentence, the fair market
value of the shares of Common Stock so delivered to the Company shall be
determined in accordance with procedures adopted by the Committee. As promptly
as practicable after receipt of such written notification and payment, the
Company shall deliver to the optionee certificates for the number of shares with
respect to which such Option has been so exercised, issued in the optionee's
name; provided, however, that such delivery shall be deemed effected for all
purposes when a stock transfer agent of the Company shall have deposited such
certificates in the Unites States mail, addressed to the optionee, at the
address specified pursuant to this
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Section 10.
SECTION 11. TRANSFERABILITY OF OPTIONS.
Options shall not be transferable by the optionee otherwise than by will or
under the laws of descent and distribution, and shall be exercisable, during his
or her lifetime, only by that person.
SECTION 12. TERMINATION OF EMPLOYMENT OR SERVICES OR DEATH OF OPTIONEE.
Except as may be otherwise expressly provided herein, Options may be not
exercised after the earlier of:
(i) the date of expiration thereof; or
(ii) the date of termination of the optionee's employment with or
services to the Company by it for cause (as determined by the Company),
or voluntarily by the optionee; or (iii) ninety (90) days after termination of
the optionee's employment with or services to the Company by it without cause.
12.1 TEMPORARY LEAVE. Whether authorized temporary leave of absence, or absence
on military or government service, shall constitute termination of the
employment or consultant relationship between the Company and the optionee shall
be determined by the Committee at the time thereof.
12.2 DEATH OR DISABILITY. In the event the optionee as an employee shall be
retired in good standing from the employ of the Company for reasons of
disability under the then established rules of the Company or in the event of
the death of the holder of an Option while an employee or consultant of the
Company and before the date of expiration of such Option, such Option may be
exercised until the earlier of such date of expiration or one (1) year following
the date of such retirement for reason of disability or such death, to the
extent the optionee was entitled to exercise such Option immediately before his
death. After the death of the optionee, his executors, administrators or any
person or persons to whom his Option may be transferred by will or by the laws
of descent and distribution, shall have the right to exercise the Option.
12.3 RETIREMENT. If, before the date of expiration of the Option, the optionee
as an employee shall be retired in good standing from the employ of the Company
for reasons of age under the then established rules of the Company, the Option
may be exercised until the earlier of such date of expiration or ninety (90)
days after the date of such retirement, to the extent to which the optionee was
entitled to exercise such Option immediately prior to such retirement.
12.4 EMPLOYMENT RELATIONSHIP; CONSULTANT RELATIONSHIP. An employment
relationship between the Company and the optionee shall be deemed to exist
during any period in which the optionee is employed by the Company. A consultant
relationship between the Company and the optionee shall be deemed to exist
during any period in which the optionee renders services as a consultant or
otherwise on an independent contractor basis to the Company.
SECTION 13. REQUIREMENTS OF LAW.
The Company shall not be required to sell or issue any shares under any Option
if the issuance of such shares shall constitute a violation by the optionee or
by the Company of any provision of any law, regulation or order of any
governmental authority. Without limiting the generality of the foregoing, upon
exercise of any Option, the Company
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shall not be required to issue such shares unless the Committee has received
evidence satisfactory to it to the effect that the holder of such Option will
not transfer such shares except pursuant to a registration statement in effect
under the Securities Act of 1933, as now in effect or hereafter amended (the
"Act"), and under the applicable securities laws of any State, unless the
Company has received an opinion of counsel satisfactory to the Company, in form
and substance satisfactory to the Company, to the effect that such registration
is not required. Any determination in this connection by the Committee shall be
final, binding and conclusive. In the event the shares issuable on exercise of
an Option are not registered under the Act, the Company may imprint the
following legend or any other legend which counsel for the Company considers
necessary or advisable to comply with the Act or other applicable laws:
The shares of stock represented by this certificate have not been registered
under the Securities Act of 1933 or under the securities laws of any State and
may not be sold or transferred except upon such registration or upon receipt by
the Corporation of an opinion of counsel satisfactory to the Corporation, in
form and substance satisfactory to the Corporation, that registration is not
required for such sale or transfer.
The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Act; and in the event any shares are so
registered the Company may remove any legend on certificates representing such
shares. The Company shall not be obligated to take any other affirmative action
in order to cause the exercise of an Option or the issuance of shares pursuant
thereto to comply with any other law, regulation or order of any governmental
authority.
SECTION 14. NO RIGHTS AS STOCKHOLDER.
No optionee shall have rights as a stockholder with respect to shares covered by
his Option until the date of issuance of a stock certificate for such shares;
and, except as otherwise provided in Section 16 hereof, no adjustment for
dividends, or otherwise, shall be made if the record date therefor is prior to
the date of issuance of such certificate.
SECTION 15. EMPLOYMENT OBLIGATION.
The granting of any Option shall not impose upon the Company any obligation to
employ or continue to employ, or to retain the services of or to continue to
retain the services of, any optionee; and the right of the Company to terminate
the employment or services of any officer, other employee or consultant shall
not be diminished or affected by reason of the fact that an Option has been
granted to him.
SECTION 16. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE.
The existence of outstanding Options shall not affect in any way the right or
power of the Company or its stockholders to make or authorize, without
limitations, any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of Common Stock, or any issue of
bonds, debentures, preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
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If the Company shall effect a subdivision or consolidation or shares or other
capital readjustment, the payment of a stock dividend, or other increase or
reduction of the number of shares of the Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (i) the
number, class, and per share price of shares of stock subject to outstanding
Options hereunder shall be appropriately adjusted in such a manner as to entitle
an optionee to receive upon exercise of an Option, for the same aggregate cash
consideration, the same total number and class of shares as he would have
received as a result of the event requiring the adjustment had he exercised his
Option in full immediately prior to such event; and (ii) the number and class of
shares with respect to which Options may be granted under the Plan shall be
adjusted by substituting for the total number of shares of Common Stock then
reserved that number and class of shares of stock that would have been received
by the owner of an equal number of outstanding shares of Common Stock as the
result of the event requiring the adjustment.
After a merger of one or more corporations into the Company, or after a
consolidation of the Company and one or more corporations in which (i) the
Company shall be the surviving corporation, and (ii) the stockholders of the
Company immediately prior to such merger or consolidation own after such merger
or consolidation shares representing at least fifty percent (50%) of the voting
power of the Company, each holder of an outstanding Option shall, at no
additional cost, be entitled upon exercise of such Option to receive (subject to
any required action by stockholders) in lieu of the number of shares as to which
such Option shall then be so exercisable, the number and class of shares of
stock or other securities to which such holder would have been entitled pursuant
to the terms of the agreement of merger or consolidation if, immediately prior
to such merger or consolidation, such holder had been the holder of record of a
number of shares of Common Stock equal to the number of shares as to which such
Option shall be so exercised.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or if
there is a merger or consolidation where the Company is the surviving
corporation but the stockholders of the Company immediately prior to such merger
or consolidation do not own after such merger or consolidation shares
representing fifty percent (50%) of the voting power of the Company, or if the
Company is liquidated, or sells or otherwise disposes of substantially all its
assets to another corporation while unexercised Options remain outstanding under
the Plan, (i) subject to the provisions of clause (iii) below, after the
effective date of such merger, consolidation, liquidation, sale or disposition,
as the case may be, each holder of an outstanding Option shall be entitled, upon
exercise of such Option, to receive, in lieu of shares of Common Stock, shares
of such stock or other securities, cash or property as the holders of shares of
Common Stock received pursuant to the terms of the merger, consolidation,
liquidation, sale or disposition; (ii) the Committee may accelerate the time for
exercise of all unexercised and unexpired Options to and after a date prior to
the effective date of such merger, consolidation, liquidation, sale or
disposition, as the case may be, specified by the Committee; or (iii) all
outstanding Options may be cancelled by the Committee as of the effective date
of any such merger, consolidation, liquidation, sale or disposition provided
that (x) notice of such cancellation shall be given to each holder of an Option
and (y) each holder of an Option shall have the right to exercise such Option to
the extent that the same is then exercisable or, if the Committee shall have
accelerated the time for exercise of all unexercised and unexpired Options, in
full during the 30-day period preceding the effective date of such merger,
consolidation, liquidation, sale or disposition.
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Except as hereinbefore expressly provided, the issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of any
class, for cash or property, or for labor or services either upon direct sale or
upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock then
subject to outstanding Options.
SECTION 17. AMENDMENT OR TERMINATION OF PLAN.
The Committee may modify, revise or terminate this Plan at any time and from
time to time, except that the class of executives, employees and consultants
eligible to receive Options and the aggregate number of shares issuable pursuant
to this Plan shall not be changed or increased, other than by operation of
Section 16 hereof, without the consent of the stockholders of the Company;
provided, however, that no amendment shall modify (within the meaning of Section
424(h) of the Code) any Incentive Stock Option outstanding on the date of such
amendment.
SECTION 18. WRITTEN AGREEMENT.
Each Option granted hereunder shall be embodied in a written option agreement
which shall be subject to the terms and conditions prescribed above and shall be
signed by the President, any Vice President or the Treasurer of the Company for
and in the name and on behalf of the Company. Such an option agreement shall
contain such other provisions as the Committee in its discretion shall deem
advisable.
SECTION 19. EFFECTIVE DATE AND DURATION OF PLAN.
The Plan shall become effective upon its adoption by the Board of Directors, and
shall be submitted to the stockholders of the Company at the next Annual Meeting
or Special Meeting in Lieu of Annual Meeting following the adoption of the Plan
by the Board of Directors. Options may not be granted under the Plan more than
(10) years after said effective date. The Plan shall terminate (i) when the
total amount of the Common Stock with respect to which Options may be granted
shall have been issued upon the exercise of Options or (ii) by action of the
Committee pursuant to Section 17 hereof, whichever shall first occur.
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EXHIBIT 5.1
FOLEY, HOAG & ELIOT LLP
One Post Office Square
Boston, Massachusetts 02109
May 21, 1997
Cayenne Software, Inc.
8 New England Executive Park
Burlington, MA 01803
Ladies and Gentlemen:
We are familiar with the Registration Statement on Form S-8 transmitted
for filing by the Company today (the "S-8 Registration Statement") relating to
2,000,000 shares (the "Shares") of the Company's Common Stock to be offered
puruant to the Company's Amended 1996 Incentive and Nonqualified Stock Option
Plan (the "Plan").
We are familiar with the Company's Articles of Organization and all
amendments thereto, its By-Laws and all amendments thereto, the records of all
meetings and consents of its Board of Directors and of its stockholders, and its
stock records. We have examined such other records and documents as we deemed
necessary or appropriate for purposes of rendering this opinion.
Based upon the foregoing, we are of the opinion that (a) the Company has
corporate power adequate for the issuance of the Shares in the manner set forth
in the S-8 Registration Statement; and (b) upon issuance upon exercise of
options granted under the Plan in against payment of the specified exercise
prices therefor, the Shares will be legally issued, fully paid and
non-assessable.
We 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/ David W. Walker
----------------------------
a Partner
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
Board of Directors and Stockholders of Cayenne Software, Inc.
We consent to the incorporation by reference in this Registration
Statement of Cayenne Software, Inc. (formerly Bachman Information Systems, Inc.)
on Form S-8 of our report, which included an explanatory paragraph about the
merger of Cayenne Software, Inc. and Cadre Technologies Inc. which has been
accounted for as a pooling of interests, dated February 25, 1997, on our audits
of the consolidated financial statements of Cayenne Software, Inc. as of
December 31, 1996 and June 30, 1996, and for the six month period ended December
31, 1996 and the year ended June 30, 1996, which report is included in the
Annual Report on Form 10-K of Cayenne Software, Inc. for the transition period
ended December 31, 1996.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 21, 1997
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cayenne Software, Inc. on Form S-8 of our report dated February 2, 1996
(relating to the consolidated financial statements of Cadre Technologies Inc.
and its subsidiaries, which expresses an unqualified opinion and includes an
explanatory paragraph relating to substantial doubt about Cadre Technologies
Inc.'s ability to continue as a going concern) appearing in the Annual Report on
Form 10-K of Cayenne Software, Inc. for the transition period ended December 31,
1996.
Deloitte & Touche LLP Boston, MA
May 19, 1997
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