<PAGE>
As filed with the Securities and Exchange Commission on August 7, 2000
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. 1996 Amended and Restated Incentive and Non-Qualified Stock
Option Plan, as amended
Segue Software, Inc. 1996 Employee Stock Purchase 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
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
Being Registered Registered (1) Share (2) Price (2) Registration Fee
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1996 Amended and 450,000 shares $8.22 $3,699,000 $976.54
Restated Incentive
and Non-Qualified
Stock Option Plan
Common Stock, par
value $.01 per share
==============================================================================================================
1996 Employee Stock 100,000 shares $8.22 $ 822,000 $217.01
Purchase Plan
Common Stock, par
value $.01 per share
===========================================================================================================
</TABLE>
(1) This registration statement also relates to such additional number of
shares available for issuance under the plans as may be required pursuant
to the plans in the event of a stock dividend, stock split,
recapitalization or other similar event, or as otherwise provided for in
the plans.
(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
August 2, 2000 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, 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.
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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 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
--------
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. 1996 Amended and Restated Incentive and Non-
Qualified Stock Option Plan (incorporated herein by reference to
Appendix A of the Company's Definitive Proxy Statement on Schedule 14A
(File No. 000-27794) as filed with the Commission on June 26, 1996).
4.4 Amendment No. 1 to Segue Software, Inc. 1996 Amended and Restated
Incentive and Non-Qualified Stock Option Plan (incorporated herein by
reference to exhibit 4.3 of the Company's Registration Statement on
Form S-8 (File No. 333-32903) as filed with the Commission on August
5, 1997).
4.5 Amendment No. 2 to Segue Software, Inc. 1996 Amended and Restated
Incentive and Non-Qualified Stock Option Plan (incorporated herein by
reference to exhibit 4.3 of the Company's Registration Statement on
Form S-8 (File No. 333-67739) as filed with the Commission on November
23, 1998).
2
<PAGE>
4.6 Segue Software, Inc. 1996 Employee Stock Purchase Plan (incorporated
herein by reference to Appendix B of the Company's Definitive Proxy
Statement on Schedule 14A (File No. 000- 27794) as filed with the
Commission on June 26, 1996).
4.7 Amendment No. 1 to Segue Software, Inc. 1996 Employee Stock Purchase
Plan (incorporated herein by reference to exhibit 4.4 of the
Company's Registration Statement on Form S-8 (File No. 333-67739) as
filed with the Commission on November 23, 1998).
*4.8 Amendment No. 3 to Segue Software, Inc. 1996 Amended and Restated
Incentive and Non-Qualified Stock Option Plan.
*4.9 Amendment No. 2 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.
*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:
(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
-------- -------
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
3
<PAGE>
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
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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 August
7, 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.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Stephen B. Butler President, Chief Executive Officer, August 7, 2000
------------------------- Director (Principal Executive Officer)
Stephen B. Butler
/s/ Douglas Zaccaro Senior Vice President, Chief Financial Officer August 7, 2000
------------------------- and Treasurer (Principal Financial and
Douglas Zaccaro Accounting Officer)
Director August 7, 2000
-------------------------
Leonard E. Baum
/s/ John R. Levine Director August 7, 2000
-------------------------
John R. Levine
Director August 7, 2000
-------------------------
Howard L. Morgan
/s/ Robert W. Powers, Jr. Director August 7, 2000
-------------------------
Robert W. Powers, Jr.
/s/ Jyoti Prakash Director August 7, 2000
-------------------------
Jyoti Prakash
Director August 7, 2000
_________________________
James H. Simons
</TABLE>
<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 3.3 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. 1996 Amended and Restated Incentive and Non-
Qualified Stock Option Plan (incorporated herein by reference to
Appendix A of the Company's Definitive Proxy Statement on
Schedule 14A (File No. 000-27794) as filed with the Commission on
June 26, 1996).
4.4 Amendment No. 1 to Segue Software, Inc. 1996 Amended and Restated
Incentive and Non-Qualified Stock Option Plan (incorporated
herein by reference to exhibit 4.3 of the Company's Registration
Statement on Form S-8 (File No. 333-32903) as filed with the
Commission on August 5, 1997).
4.5 Amendment No. 2 to Segue Software, Inc. 1996 Amended and Restated
Incentive and Non-Qualified Stock Option Plan (incorporated
herein by reference to exhibit 4.3 of the Company's Registration
Statement on Form S-8 (File No. 333-67739) as filed with the
Commission on November 23, 1998).
4.6 Segue Software, Inc. 1996 Employee Stock Purchase Plan
(incorporated herein by reference to Appendix B of the Company's
Definitive Proxy Statement on Schedule 14A (File No. 000- 27794)
as filed with the Commission on June 26, 1996).
4.7 Amendment No. 1 to Segue Software, Inc. 1996 Employee Stock
Purchase Plan (incorporated herein by reference to exhibit 4.4 of
the Company's Registration Statement on Form S-8 (File No. 333-
67739) as filed with the Commission on November 23, 1998).
*4.8 Amendment No. 3 to Segue Software, Inc. 1996 Amended and Restated
Incentive and Non-Qualified Stock Option Plan.
*4.9 Amendment No. 2 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.
*23.3 Consent of Grant Thornton LLP.
24.1 Powers of Attorney (included on page 5 of this registration
statement).
*Filed herewith
