<PAGE>
As filed with the Securities and Exchange Commission on August 1, 1996
REGISTRATION NO. 33 -
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
under the
SECURITIES ACT OF 1933
-----------------------------------
SEGUE SOFTWARE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-4188982
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1320 CENTRE STREET
NEWTON CENTRE, MASSACHUSETTS 02159
(Address of Principal Executive Offices)
SEGUE SOFTWARE, INC.
1996 AMENDED AND RESTATED INCENTIVE
AND NON-QUALIFIED STOCK OPTION PLAN
SEGUE SOFTWARE, INC. 1996 EMPLOYEE
STOCK PURCHASE PLAN
(Full titles of the plans)
ELISABETH ELTERMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SEGUE SOFTWARE, INC.
1320 CENTRE STREET
NEWTON CENTRE, MASSACHUSETTS 02159
(617) 796-1000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
-----------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Proposed
maximum maximum
Title of Amount to be offering price aggregate Amount of
securities to be registered registered/(1)/ per share/(2)/ offering price/(2)/ registration fee
=============================================================================================================
<S> <C> <C> <C> <C>
1,504,808 $ 3.2317 $ 4,863,166 $1,677
Common Stock, $.01 par value 545,832 $10.0000 $ 5,458,320 $1,882
--------- ----------- ------
2,050,640 shares $10,321,486 $3,559
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</TABLE>
(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of the aggregate number of shares which may
be sold upon the exercise of options which have been granted and/or may
hereafter be granted under the Segue Software, Inc. 1996 Amended and
Restated Incentive and Non-Qualified Stock Option Plan and the Segue
Software, Inc. 1996 Employee Stock Purchase Plan (collectively, the
"Plans"). The maximum number of shares which may be sold upon the exercise
of such options granted under the Plans are subject to adjustment in
accordance with certain anti-dilution and other provisions of said Plans.
Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers, in
addition to the number of shares stated above, an indeterminate number of
shares which may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: (i) in the case of shares of Common Stock which
may be purchased upon exercise of outstanding options, the fee is calculated
on the basis of the price at which the options may be exercised; and (ii) in
the case of shares of Common Stock for which options have not yet been
granted and the option price of which is therefore unknown, the fee is
calculated on the basis of the average of the high and low sale prices per
share of the Common Stock on the National Market System of the National
Association of Securities Dealers Automated Quotation System (NASDAQ) as of
a date July 26, 1996 within 5 business days prior to filing this
Registration Statement.
================================================================================
Page 1 of 9 pages. Exhibit Index begins on page 7.
1
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PART I
INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
Explanatory Note. In accordance with the instructional Note to Part I
of Form S-8 as promulgated by the Securities and Exchange Commission (the
"Commission"), the information specified by Part I of Form S-8 has been omitted
from this Registration Statement on Form S-8 for offers of Common Stock pursuant
to the Plans. The Information required by Part I is included in documents sent
or given to participants in the Plans, pursuant to Rule 428(b)(1) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Segue Software, Inc. (the "Registrant" as the "Company") is subject to
the informational and reporting requirements of Sections 13(a), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. The following documents filed by the Registrant with the
Commission are incorporated herein by reference:
(a) The Company's 1995 Annual Report to Stockholders for the year ended
December 31, 1995.
(b) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report referred to in (a) above.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed under the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be part
hereof from the date of filing of such reports and documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Delaware General Corporation Law and the Registrant's Certificate
of Incorporation and By-Laws provide for indemnification of the Registrant's
directors and officers for liabilities and expenses that they may incur in such
capacities. In general, directors and officers are indemnified with respect to
actions taken in good faith in a manner reasonably believed to be in, or not
opposed to, the best interests of the Registrant, and with respect to any
criminal action or proceeding, actions that the indemnitee had no reasonable
cause to believe were unlawful.
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The Registrant has entered into indemnification agreements with each of
its directors and has obtained insurance that insures the officers and directors
of the Registrant against certain losses and that insures the Registrant against
certain of its obligations to indemnify such officers and directors.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
------------
(a) The 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;
(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, represents a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing,
any increase or decrease in the 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 twenty percent (20%) change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(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 (a)(1)(i) and (a)(1)(ii) do not apply if
the Registration Statement is on Form S-3 or Form S-8, and 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 Exchange
Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the
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<PAGE>
Exchange Act) that is incorporated by reference in this Registration
Statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act,
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 Newton Centre, Massachusetts on August 1, 1996.
Segue Software, Inc.
By: /s/ Elisabeth Elterman
--------------------------
Elisabeth Elterman
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Elisabeth Elterman his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, and 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
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in or about the premises, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or her substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities held on the
dates indicated.
Signature Title(s) Date
--------- -------- ----
/s/ Elisabeth Elterman President, Chief Executive August 1, 1996
- ------------------------------- Officer, Director
Elisabeth Elterman (Principal Executive
Officer)
/s/ J. Jeffrey Bingenheimer Chief Financial Officer, August 1, 1996
- ------------------------------- Treasurer and Assistant
J. Jeffrey Bingenheimer Secretary (Principal
Financial and Accountant
Officer)
/s/ John J. Cullinane Director August 1, 1996
- -------------------------------
John J. Cullinane
/s/ John R. Levine Director August 1, 1996
- -------------------------------
John R. Levine
/s/ Howard L. Morgan Director August 1, 1996
- -------------------------------
Howard L. Morgan
/s/ Milton E. Mohr Director August 1, 1996
- -------------------------------
Milton E. Mohr
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<PAGE>
Segue Software, Inc.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Exhibit Sequential
No. Description Page No.
- ------- --------------------------------------- ----------
<C> <S> <C>
(5) Opinion of Mintz, Levin, Cohn, Ferris, 8
Glovsky and Popeo, P.C. as to the
legality of the Common Stock being
registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, N/A
Glovsky and Popeo, P.C. (included in
opinion of counsel filed as Exhibit 5).
(23.2) Consent of Coopers & Lybrand L.L.P. 9
(24) Power of Attorney to file future N/A
amendments (set forth on the Signature
Page of this Registration Statement).
</TABLE>
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<PAGE>
Exhibit 5
August 1, 1996
Segue Software, Inc.
1320 Centre Street
Newton Centre, Massachusetts 02159
Re: Segue Software, Inc. 1996 Amended and Restated Incentive
and Non-Qualified Stock Option Plan and 1996 Employee
Stock Purchase Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 2,050,640 shares (the "Shares") of Common Stock,
$.01 par value per share, of Segue Software, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1996 Amended and Restated Incentive and
Non-Qualified Stock Option Plan and 1996 Employee Stock Purchase Plan
(collectively, the "Plans").
We have examined the Certificate of Incorporation of the Company, the By-
laws of the Company, and originals, or copies certified to our satisfaction, of
all pertinent records of the meetings of the directors and stockholders of the
Company, the Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies, and the authenticity of the
originals of any such documents.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance under the Plans, and the Shares, when issued and
paid for in accordance with the terms of the Plans and at a price per share in
excess of the par value per share for such Shares, will be legally issued, fully
paid and nonassessable.
Our opinion is limited to the Delaware General Corporation Law, and we
express no opinion with respect to the laws of any other jurisdiction. No
opinion is expressed herein with respect to the qualification of the Shares
under the securities or blue sky laws of any state or any foreign jurisdiction.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY
AND POPEO, P.C.
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EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Segue Software, Inc. on Form S-8 of our report dated February 15,
1996, on our audits of the financial statements of Segue Software, Inc. as of
December 31, 1995 and 1994, and for the years ended December 31, 1995, 1994 and
1993, which report is included in the Company's 1995 Annual Report.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
July 31, 1996
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