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As filed with the Securities and Exchange Commission on December 31, 1997
File 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
--------------------------
FTP SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2906463
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2 HIGH STREET
NORTH ANDOVER, MASSACHUSETTS 01845
(978) 685-4000
(Address of principal executive offices)
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FTP SOFTWARE, INC. 1997 EMPLOYEE EQUITY INCENTIVE PLAN
-------------------------
(Full title of the plan)
DOUGLAS F. FLOOD
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FTP SOFTWARE, INC.
2 HIGH STREET
NORTH ANDOVER, MASSACHUSETTS 01845
(Name and address of agent for service)
(978) 685-4000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered share(1) price(1) registration fee(2)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 5,690,338
par value $.01 shares $6.875 $17,026,095.27 $5,022.70
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</TABLE>
(1) The offering price for 2,515,353 shares not subject to options on the
date hereof has been estimated solely for the purpose of determining the
registration fee pursuant to Rules 457(h) and 457(c) on the basis of the
average of the high and low prices of the FTP Software, Inc. Common Stock,
par value $.01, reported on the Nasdaq National Market on December 29, 1997
($1.859375). The offering price for 3,174,985 shares subject to options
outstanding on the date hereof is the actual exercise price of such
options.
(2) Registration fee equals (a) $285.02 payable in respect of 140,535 shares
subject to options outstanding on the date hereof at an exercise price of
$6.875 per share, (b) $268.57 payable in respect of 186,750 shares subject
to options outstanding on the date hereof at an exercise price of $4.875
per share, (c) $1,881.01 payable in respect of 1,645,500 shares subject to
options outstanding on the date hereof at an exercise price of $3.875 per
share, (d) $543.39 payable in respect of 491,200 shares subject to options
outstanding on the date hereof at an exercise price of $3.75 per share, (e)
$358.73 payable in respect of 327,000 shares subject to options outstanding
on the date hereof at an exercise price of $3.7188 per share, (f) $93.70
payable in respect of 87,625 shares subject to options outstanding on the
date hereof at an exercise price of $3.625 per share, (g) $134.72 payable
in respect of 162,375 shares subject to options outstanding on the date
hereof at an exercise price of $2.8125 per share, (h) $77.83 payable in
respect of 134,000 shares subject to options outstanding on the date hereof
at an exercise price of $1.969 per share and (i) $1,379.71 payable in
respect of 2,515,353 shares that have not been issued or made subject to
options.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
FTP Software, Inc. (the "Registrant" or the "Company") hereby
incorporates the following documents herein by reference:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) all other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1996;
(c) the description of the Company's 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; and
(d) the description of the Company's Junior Preferred Stock
Purchase Rights contained in its Registration Statement on
Form 8-A filed under the Exchange Act, as amended by Amendment
No. 1 on Form 8-A/A, including any other amendment or report
filed for the purpose of updating such description.
All documents subsequently filed 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 to this registration statement 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 herein 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of Chapter 156B of the Massachusetts General Laws authorizes
a corporation to indemnify any director, officer, employee or other agent of the
corporation, and a person who serves at the corporation's request as a director,
officer, employee or other agent of another organization, or who serves at its
request in any capacity with respect to any employee benefit plan, to whatever
extent specified in or authorized by (a) the articles of organization, (b) a
by-law adopted by the stockholders or (c) a vote adopted by the holders of a
majority of the shares of stock entitled to vote on the election of directors.
The Registrant's Amended and Restated Bylaws (the "Bylaws") provide
indemnity to each of its directors and officers (including persons who serve at
its request as directors, officers or trustees of another organization, or in
any capacity with respect to any employee benefit plan) against all liabilities
and expenses, including amounts paid in satisfaction of judgments, in compromise
or as fines and penalties, and counsel fees, reasonably incurred by him or her
in connection with the defense or disposition of any action, suit or other
proceeding, whether civil or criminal, in which he or she may be involved or
with which he or she may be threatened, while in office or thereafter, by reason
of his or her being or having been such a director or officer. Under
Massachusetts law and the Bylaws, no indemnification may be provided for any
person with respect to any matter as to which he or she shall
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have been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his or her action was in the best interest of the
Registrant (any person serving another organization in one or more of the
indicated capacities at the request of the Registrant who shall have acted in
good faith in the reasonable belief that his or her action was in the best
interest of such other organization to be deemed as having acted in such manner
with respect to the Registrant) or, to the extent that such matter relates to
service with respect to any employee benefit plan, in the best interest of the
participants or beneficiaries of such employee benefit plan. The Bylaws also
provide that as to any matter disposed of by a compromise payment by such
director or officer, pursuant to a consent decree or otherwise, no
indemnification either for said payment or for any other expenses shall be
provided unless such compromise shall be approved as in the best interest of the
Registrant, after notice that it involves such indemnification: (a) by a
disinterested majority of the directors then in office; (b) by a majority of the
disinterested directors then in office, provided that there has been obtained an
opinion in writing of independent legal counsel to the effect that such director
or officer appears to have acted in good faith in the reasonable belief that his
or her action was in the best interest of the Registrant; or (c) by the holders
of a majority of the outstanding stock at the time entitled to vote for
directors, voting as a single class, exclusive of any stock owned by any
interested director or officer. The Bylaws allow expenses, including counsel
fees, reasonably incurred by any director or officer in connection with the
defense or disposition of any such action, suit or other proceeding to be paid
from time to time by the Registrant in advance of the final disposition thereof
upon receipt of an undertaking by such director or officer to repay the amounts
so paid to the Registrant if it is ultimately determined that indemnification
for such expenses is not authorized by the Bylaws. The right of indemnification
provided in the Bylaws is not exclusive of and does not affect any other rights
to which any director or officer may be entitled. As used in the Bylaws, the
terms "director" and "officer" include the relevant individual's heirs,
executors and administrators, and an "interested" director or officer is one
against whom in such capacity the proceedings in question or another proceeding
on the same or similar grounds is then pending.
Section 67 of Chapter 156B of the Massachusetts General Laws further
authorizes a corporation to purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or other agent of the
corporation, or who is or was serving at the request of the corporation as a
director, officer, employee or other agent of another organization or with
respect to any employee benefit plan, against any liability 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
liability.
The Registrant has purchased directors' and officers' liability
insurance. Such insurance covers its directors and officers with respect to
liability that they may incur in connection with their serving as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
5 Opinion of Douglas F. Flood, Esq.
23.1 Consent of Douglas F. Flood, Esq. (contained in the opinion filed as
Exhibit 5 to this registration statement)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney (included on signature page)
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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 of 1933, as amended (the
"Securities Act"),
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this registration
statement (or the most recent post-effective
amendment hereof), which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this registration statement,
and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Securities and Exchange 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; and
(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 Section 15(d) of the
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 herein, 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.
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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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the Town of North Andover, The Commonwealth of
Massachusetts, on the 30th day of December, 1997.
FTP SOFTWARE, INC.
By: /s/ Glenn C. Hazard
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Glenn C. Hazard
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Glenn C. Hazard, Douglas F. Flood and James A. Tholen, and each of
them, his or her true and lawful attorneys-in-fact and agents, with full power
of substitution, to sign on his or her behalf, individually and in each capacity
stated below, all amendments and post-effective amendments to this Registration
Statement on Form S-8 and to file the same, with all exhibits thereto and any
other documents in connection therewith, with the Securities and Exchange
Commission under the Securities Act of 1933, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as each might or could do in
person, hereby ratifying and confirming each act that said attorneys-in-fact and
agents 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 below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Glenn C. Hazard President and Chief Executive December 30, 1997
- ------------------------------ Officer (Principal Executive
Glenn C. Hazard Officer) and a Director
/s/ James A. Tholen Senior Vice President and Chief December 30, 1997
- ------------------------------ Financial and Operating Officer
James A. Tholen (Principal Financial and
Accounting Officer)
/s/ Kevin J. Burns Director December 30, 1997
- ------------------------------
Kevin J. Burns
/s/ Vinton G. Cerf Director December 29, 1997
- ------------------------------
Vinton G. Cerf
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ David D. Clark Director December 30, 1997
- ------------------------------
David D. Clark
Director December __, 1997
- ------------------------------
F. David Fowler
Director December __, 1997
- ------------------------------
Louise A. Mathews Cromwell
</TABLE>
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EXHIBIT INDEX
NUMBER TITLE OF EXHIBIT
- ------ ----------------
5 Opinion of Douglas F. Flood, Esq.
23.1 Consent of Douglas F. Flood, Esq. (contained in the opinion filed as
Exhibit 5 to this registration statement)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney (included on signature page)
<PAGE> 1
[LETTERHEAD OF FTP SOFTWARE, INC.]
EXHIBIT 5
December 30, 1997
FTP Software, Inc.
2 High Street
North Andover, Massachusetts 01845
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with the registration
statement on Form S-8 (the "Registration Statement") filed by FTP Software, Inc.
(the "Company") with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended ("the Act"), for the registration
of 5,690,338 shares of common stock, $.01 par value (the "Shares"), that may be
issued pursuant to awards granted under the FTP Software, Inc.
1997 Employee Equity Incentive Plan (the "Plan").
I am Senior Vice President and General Counsel of the Company and have
acted as counsel for the Company in connection with the Registration Statement
and am familiar with the actions taken by the Company in connection therewith.
For purposes of this opinion, I have examined copies of the Registration
Statement and the Plan and such other documents as I have deemed appropriate.
Based upon the foregoing, I am of the opinion that, when the Shares have
been issued and sold and consideration received by the Company therefor in
accordance with the terms of the Plan, the Shares will have been validly issued
and will be fully paid and non-assessable.
I hereby consent to the filing of this opinion as part of the
Registration Statement. In rendering this opinion and in giving such consent, I
do not admit that I am within the category of persons whose consent is required
under Section 7 of the Act and the rules and regulations of the Commission
thereunder.
Very truly yours,
/s/ Douglas F. Flood
Douglas F. Flood., Esq.
Senior Vice President and General Counsel
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
FTP Software, Inc. (the "Company") on Form S-8 of our report dated February 3,
1997, on our audits of the consolidated financial statements of FTP Software,
Inc. as of December 31, 1996 and 1995, and for the years ended December 31,
1996, 1995 and 1994, which report is included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
December 30, 1997
