<PAGE>
As filed with the Securities and Exchange Commission on November 23, 1998
REGISTRATION STATEMENT NO. 333-
================================================================================
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 of incorporation) (I.R.S. Employer Identification Number)
201 SPRING STREET
LEXINGTON, MASSACHUSETTS 02421
(781) 402 - 1000
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
SEGUE SOFTWARE, INC. AMENDED AND RESTATED 1996 INCENTIVE AND
NON-QUALIFIED STOCK OPTION PLAN
SEGUE SOFTWARE, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
----------------------
STEPHEN B. BUTLER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SEGUE SOFTWARE, INC.
201 SPRING STREET
LEXINGTON, MASSACHUSETTS 02421
(781) 402 - 1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
With a copy to:
Jeffrey C. Hadden, Esq.
Goodwin, Procter & Hoar LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed Maximum
Title of Securities Being Amount to be Proposed Maximum Offering Aggregate Amount of
Registered Registered Price Per Share Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 250,000(1) $24.0625(3) $6,015,625 $1,673
per share 100,000(2) 24.0625(3) 2,406,250 669
---------- ------
350,000 $2,342
=========================================================================================================================
</TABLE>
(1) Additional shares issued or available for issuance under the Segue
Software, Inc. Amended and Restated 1996 Incentive and Non-Qualified Stock
Option Plan, as amended ( the "Stock Option Plan"); plus such additional
number of shares as may be required pursuant to the Stock Option Plan in
the event of a stock dividend, stock split, recapitalization or other
similar event.
(2) Additional shares issued or available for issuance under the Segue
Software, Inc. 1996 Employee Stock Purchase Plan, as amended (the "Stock
Purchase Plan"); plus such additional number of shares as may be required
pursuant to the Stock Purchase Plan in the event of a stock dividend, stock
split, recapitalization or other similar event.
(3) This estimate is based on the average of the high and low sales prices on
the Nasdaq National Market of the Common Stock of Segue Software, Inc. on
November 19, 1998 pursuant to Rules 457(c) and (h) under the Securities Act
of 1933, as amended, solely for purposes of determining the registration
fee.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUSES
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
Segue Software, Inc. (the "Company") hereby incorporates by reference the
documents listed in (a) through (c) below, which have previously been filed with
the Securities and Exchange Commission.
(a) The Company's Annual Report on Form 10-K, containing audited financial
statements for the fiscal year ended December 31, 1997, filed with the
Securities and Exchange Commission (the "Commission") pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on March 30, 1998;
(b) All other reports filed since December 31, 1997 pursuant to Section
13(a) or 15(d) of the Exchange Act; and
(c) The description of the Company's common stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
February 16, 1996, as amended, under Section 12 of the Exchange Act and
any amendments or reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment hereto which indicates that
all securities offered hereunder 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.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Subsection (a) of Section 145 of the Delaware General Corporation Law (the
"DGCL") empowers a corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that the person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good
<PAGE>
faith and in a manner the person reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person's conduct was
unlawful. Under subsection (a) the termination of any action, suit or proceeding
by judgment, order, settlement, conviction or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought 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 which the Court of Chancery or such other court
shall deem proper.
Subsection (d) of Section 145 of the DGCL permits indemnification under
subsections (a) and (b) of Section 145 only if authorized in the specific case
following a determination that the individual seeking indemnification has met
the standard of conduct required by the applicable subsection. Such
determination shall be made (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section
145, or in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; that indemnification provided for by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and that the corporation has the power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
Article VII of the Company's Amended and Restated Certificate of
Incorporation, as amended (the "Certificate"), and Article V of the Company's
By-laws provides for indemnification by the Company, to the fullest extent
permitted by Section 145 of the DGCL, the same exists or may hereafter be
amended, of its directors, officers, and certain persons serving at the request
of the Company as a director, officer, employee or agent of another company, or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (hereinafter "Indemnitee") against all
expense, liability and loss (including attorney's fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by the Indemnitee in connection with the defense or settlement of any
threatened, pending or completed legal proceeding, whether civil, criminal,
administrative or investigative, in which said Indemnitee is involved by reason
of his relationship with the Company.
Article VIII of the Company's Certificate provides that no director of the
Company shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases, or (iv)
for any transaction from which the director derived an improper personal
benefit. In addition, the Certificate provides that if the DGCL is amended to
authorize the further elimination or limitation of the liability of directors,
then the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the DGCL as so amended.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibits
- --------
4.1 Segue Software, Inc. Amended and Restated Certificate of Incorporation
(incorporated herein by reference to exhibit 3.2 of the Company's
Registration Statement on Form S-1 (File No. 333-1488) as filed with
the Commission on February 16, 1996).
4.2 Segue Software, Inc. By-laws (incorporated herein by reference to
exhibit 3.3 of the Company's Registration Statement on Form S-1 (File
No. 333-1488) as filed with the Commission on February 16, 1996).
*4.3 Amendment to Segue Software, Inc. Amended and Restated 1996 Incentive
and Non-Qualified Stock Option Plan, as amended.
*4.4 Amendment to Segue Software, Inc. 1996 Employee Stock Purchase Plan.
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP
24.1 Powers of Attorney (included on page 5 of this registration statement).
*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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above shall
-------- -------
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the
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
<PAGE>
(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 undersigned 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 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 Exchange Act)
that is incorporated by reference in the 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 Securities and
Exchange 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Lexington, Commonwealth of Massachusetts, on November
23, 1998.
SEGUE SOFTWARE, INC.
By: /s/ STEPHEN B. BUTLER
-------------------------------------
Stephen B. Butler
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Segue Software, Inc. hereby severally constitute Stephen B. Butler
and Carl D. Blandino, and each of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our
names in the capacities indicated below, the registration statement filed
herewith and any and all amendments to said registration statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Segue Software, Inc. to comply with the provisions of
the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said registration statement and any
and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ STEPHEN B. BUTLER President, Chief Executive November 23, 1998
- ------------------------ Officer, Director
Stephen B. Butler (Principal Executive Officer)
/s/ CARL D. BLANDINO Senior Vice President of
- ------------------------ Administration, Chief Financial November 23, 1998
Carl D. Blandino Officer (Principal Financial
and Accounting Officer)
/s/ LEONARD E. BAUM
- ------------------------ Director November 23, 1998
Leonard E. Baum
/s/ RONALD D. FISHER
- ------------------------ Director November 23, 1998
Ronald D. Fisher
/s/ JOHN R. LEVINE
- ------------------------ Director November 23, 1998
John R. Levine
/s/ HOWARD L. MORGAN
- ------------------------ Director November 23, 1998
Howard L. Morgan
/s/ JAMES H. SIMONS
- ------------------------ Director November 23, 1998
James H. Simons
5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
4.1 Segue Software, Inc. Amended and Restated Certificate of
Incorporation (incorporated herein by reference to exhibit 3.2 of
the Company's Registration Statement on Form S-1 (File No. 333-
1488) as filed with the Commission on February 16, 1996).
4.2 Segue Software, Inc. By-laws (incorporated herein by reference to
exhibit 3.2 of the Company's Registration Statement on Form S-1
(File No. 333-1488) as filed with the Commission on February 16,
1996).
*4.3 Amendment to Segue Software, Inc. Amended and Restated 1996
Incentive and Non-Qualified Stock Option Plan, as amended.
*4.4 Amendment to Segue Software, Inc. 1996 Employee Stock Purchase
Plan.
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1).
*23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included on page 5 of this registration
statement).
*Filed herewith
<PAGE>
EXHIBIT 4.3
-----------
SEGUE SOFTWARE, INC.
AMENDMENT TO AMENDED AND RESTATED 1996 INCENTIVE AND
NON-QUALIFIED STOCK OPTION PLAN
The following amendment to the Amended and Restated 1996 Incentive and Non-
Qualified Stock Option Plan of Segue Software, Inc. (the "Company"), was adopted
by the Board of Directors of the Company on February 25, 1998 and approved by
the Stockholders of the Company at the 1998 Annual Meeting of Stockholders held
on June 5, 1998:
VOTED: To amend Paragraph 3 of the Amended and Restated 1996 Incentive
----- and Non-Qualified Stock Option Plan to increase the number of
Shares subject to the Plan as to which Options may be granted from
time to time from 3,000,000 to 3,250,000, or the equivalent of
such number of Shares after the Administrator, in its sole
discretion, has interpreted the effect of any stock split, stock
dividend, combination, recapitalization or similar transaction in
accordance with Paragraph 16 of the Plan.
<PAGE>
EXHIBIT 4.4
-----------
SEGUE SOFTWARE, INC.
AMENDMENT TO 1996 EMPLOYEE STOCK PURCHASE PLAN
The following amendment to the 1996 Employee Stock Purchase Plan of Segue
Software, Inc. (the "Company"), was adopted by the Board of Directors of the
Company on February 25, 1998 and approved by the Stockholders of the Company at
the 1998 Annual Meeting of Stockholders held on June 5, 1998:
VOTED: To increase the number of shares reserved for issuance under the
----- Company's Employee Stock Purchase Plan by 100,000 shares.
<PAGE>
EXHIBIT 5.1
-----------
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
November 23, 1998
Segue Software, Inc.
201 Spring Street
Lexington, Massachusetts 02421
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Segue Software,
Inc. (the "Company") in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933 of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
250,000 shares (the "Option Plan Shares") of the Company's common stock, par
value $.01 per share (the "Common Stock"), which the Company is authorized to
issue pursuant to the Segue Software, Inc. Amended and Restated 1996 Incentive
and Non-Qualified Stock Option Plan, as amended (the "Option Plan"), and 100,000
shares (the "Purchase Plan Shares," and together with the Option Plan Shares,
the "Shares") of Common Stock which the Company is authorized to issue pursuant
to the Segue Software, Inc. 1996 Employee Stock Purchase Plan (the "Purchase
Plan").
As counsel for the Company, we have examined a copy of the Option Plan, the
Purchase Plan and the Company's Amended and Restated Certificate of
Incorporation and the Amended and Restated By-laws, each as presently in effect,
and such records, certificates and other documents of the Company as we have
deemed necessary or appropriate for the purposes of this opinion.
Based on the foregoing, we are of the opinion that, when the Shares are
sold and paid for pursuant to the terms of the Option Plan or the Purchase Plan,
as the case may be, the Shares will be legally issued, fully paid and non-
assessable by the Company under the General Corporation Law of the State of
Delaware.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Act and applicable requirements of state laws regulating
the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
<PAGE>
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 5, 1998, on our
audits of the consolidated financial statements of Segue Software, Inc. as of
December 31, 1997 and 1996, and for each of the three years in the period ended
December 31, 1997, which report is included in the Segue Software, Inc. Annual
Report on Form 10-K for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
November 20, 1998
