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As filed with the Securities and Exchange Commission on June 23, 2000
Registration Statement No. 333-
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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. 1998 Employee Stock Option Plan, as amended
(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, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
____________________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount
of Registered Registered (1) Price Per Share (2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share 250,000 shares $ 8.125 $ 2,031,250 $ 536.25
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</TABLE>
(1) Additional shares issued or available for issuance under the Segue
Software, Inc. 1998 Employee 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) 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
June 19, 2000 pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, solely for purposes of determining the registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUSES
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
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* 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, 1999, 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, 2000;
(b) All other reports filed since December 31, 1999 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.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
In accordance with Section 145 of the Delaware General Corporation Law
(the "DGCL"), Article VIII of the Company's Amended and Restated Certificate of
Incorporation, as amended (the "Certificate"), provides
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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.
Article VII of the Company's Certificate and Article V of the Company's
By-laws provide for indemnification by the Company, to the fullest extent
permitted by Section 145 of the DGCL, as 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; provided, however, that except with
respect to proceedings to enforce rights to indemnification or as otherwise
required by law, the Company shall not be required to indemnify or advance
expenses to any such indemnitee in connection with a proceeding initiated by the
indemnitee unless the proceeding was authorized by the Board of Directors.
The Company has directors' and officers' insurance covering certain
liabilities incurred by the directors and officers of the Company in connection
with the performance of their duties.
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
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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 Segue Software, Inc. 1998 Employee Stock Option Plan
(incorporated herein by reference to exhibit 4.3 of the Company's
Registration Statement on Form S-8 (File No. 333-69105) as filed
with the Commission on December 17, 1998).
4.4 Amendment No. 1 to Segue Software, Inc. 1998 Employee Stock
Purchase Plan (incorporated herein by reference to exhibit 10.18
of the Company's Annual Report on Form 10-K (File No. 000-27794)
as filed with the Commission on March 30, 2000).
*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
*23.3 Consent of Grant Thornton 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:
2
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(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; 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) above
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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) 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.
3
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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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Lexington, Commonwealth of Massachusetts, on June 23,
2000.
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 Douglas Zaccaro, 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.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ Stephen B. Butler President, Chief Executive Officer, June 23, 2000
-------------------------
Stephen B. Butler Director (Principal Executive Officer)
/s/ Douglas Zaccaro Chief Financial Officer and Treasurer June 23, 2000
-------------------------
Douglas Zaccaro (Principal Financial and Accounting Officer)
_________________________ Director June , 2000
Leonard E. Baum
/s/ Jyoti Prakash Director June 23, 2000
-------------------------
Jyoti Prakash
/s/ John R. Levine Director June 23, 2000
-------------------------
John R. Levine
/s/ Howard L. Morgan Director June 23, 2000
-------------------------
Howard L. Morgan
/s/ James H. Simons Director June 23, 2000
-------------------------
James H. Simons
</TABLE>
4
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EXHIBIT INDEX
Exhibit No. Description
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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 Segue Software, Inc. 1998 Employee Stock Option Plan
(incorporated herein by reference to exhibit 4.3 of the Company's
Registration Statement on Form S-8 (File No. 333-69105) as filed
with the Commission on December 17, 1998).
4.4 Amendment No. 1 to Segue Software, Inc. 1998 Employee Stock
Purchase Plan (incorporated herein by reference to exhibit 10.18
of the Company's Annual Report on Form 10-K (File No. 000-27794)
as filed with the Commission on March 30, 2000).
*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
*23.3 Consent of Grant Thornton LLP
24.1 Powers of Attorney (included on page 5 of this registration
statement).
*Filed herewith
5
