<PAGE> 1
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT, THE PROSPECTUS WHICH CONSTITUTES
PART OF THIS REGISTRATION STATEMENT ALSO RELATES TO AN AGGREGATE OF 474,828
SHARES OF THE REGISTRANT'S COMMON STOCK PREVIOUSLY REGISTERED ON A FORM S-3,
REGISTRATION NO. 333-3404.
As filed with the Securities and Exchange Commission on July 25, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
MACROMEDIA, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3155026
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
600 TOWNSEND STREET
SAN FRANCISCO, CALIFORNIA 94103
(415) 252-2000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
______________________
JOHN C. PARSONS, JR.
CHIEF FINANCIAL OFFICER
MACROMEDIA, INC.
600 TOWNSEND STREET, SUITE 310W
SAN FRANCISCO, CALIFORNIA 94103
(415) 252-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
______________________
Copies to:
ROBERT A. FREEDMAN, ESQ.
FENWICK & WEST LLP
TWO PALO ALTO SQUARE
PALO ALTO, CALIFORNIA 94306
(415) 494-0600
-----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT
TO BE REGISTERED REGISTERED(1) SHARE(1) PRICE(1) REGISTRATION FEE(1)
=================================================================================================================================
<S> <C> <C> <C> <C>
Common Stock $.001 par value per share 599,996 shs. $ 9.1875 $ 5,512,463 $ 1,671
-------- ---------- ------
=================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee, pursuant to Rule 457(c) under the Securities Act,
based on the average of the high and low prices of the Common Stock on
the Nasdaq National Market on July 23, 1997. An additional 574,828
shares are being carried forward from Registration No. 333-3404
originally filed on April 8, 1996. A filing fee in the amount of
$12,574 was paid at that time.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
<PAGE> 2
- --------------------------------------------------------------------------------
PROSPECTUS
- --------------------------------------------------------------------------------
1,074,824 SHARES
MACROMEDIA, INC.
COMMON STOCK
____________
All of the 1,074,824 shares of Common Stock offered hereby are being
sold by the FutureWave Selling Stockholders (as defined below) and the Iband
Selling Stockholder (as defined below) named herein under "Selling
Stockholders." Such shares are being offered on a continuous basis pursuant to
Rule 415 under the Securities Act of 1933, as amended. No underwriting
discounts, commissions or expenses are payable or applicable in connection with
the sale of such shares. The Common Stock of Macromedia, Inc. (the "Company")
is quoted on the Nasdaq National Market under the symbol "MACR." The shares of
Common Stock offered hereby will be sold from time to time at then prevailing
market prices, at prices relating to prevailing market prices or at negotiated
prices. On July 24, 1997, the closing price of the Common Stock on the Nasdaq
National Market was $9.656 per share.
474,828 of the shares offered hereby were issued by the Company in
connection with its acquisition of Iband, Inc. ("Iband") to one of the
stockholders of Iband (the "Iband Selling Stockholder") on March 14, 1996. The
shares of Common Stock offered by the Iband Selling Stockholder hereby
represent approximately 1.2 percent of the Company's currently outstanding
Common Stock.
599,996 shares of the Common Stock offered hereby were issued by the
Company in connection with its acquisition of FutureWave Software, Inc.
("FutureWave") to the stockholders of FutureWave (the "FutureWave Selling
Stockholders") on December 31, 1996. The shares of Common Stock offered by the
FutureWave Selling Stockholders hereby represent 1.6 percent of the Company's
currently outstanding Common Stock.
___________________
SEE "RISK FACTORS" COMMENCING ON PAGE 4 HEREOF
FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION
WITH AN INVESTMENT IN THE COMMON STOCK OFFERED HEREBY.
___________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
- --------------------------------------------------------------------------------
THE DATE OF THIS PROSPECTUS IS __________, 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") two Registration Statements on Form S-3 (together with all
amendments and exhibits, the "Registration Statements") under the Securities
Act of 1933, as amended (the "Securities Act"), with respect to the shares of
Common Stock offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statements, certain parts of which
have been omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the Common
Stock offered hereby, reference is made to the Registration Statements.
Statements in this Prospectus as to the contents of any contract or other
document referred to herein are not necessarily complete, and in each instance
in which a copy of such contract is filed as an exhibit to one of the
Registration Statements, reference is made to such copy, and each such
statement shall be deemed qualified in all respects by such reference. Copies
of the Registration Statements may be inspected, without charge, at the offices
of the Commission, or obtained at prescribed rates from the Public Reference
Section of the Commission at the address set forth below.
The Company is subject to the informational requirements 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. Such reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities of the Commission located at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the Commission's regional offices
at Seven World Trade Center, 13th Floor, New York, New York 10048; and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can also be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The
address of the site is http://www.sec.gov. The Company's Common Stock is
quoted for trading on the Nasdaq National Market and reports, proxy statements
and other information concerning the Company may be inspected at the offices of
the National Association of Securities Dealers, Inc., 9513 Key West Avenue,
Rockville, Maryland 20850.
NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS, AND ANY INFORMATION OR
REPRESENTATION NOT CONTAINED OR INCORPORATED HEREIN MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY SELLING STOCKHOLDER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER
TO BUY BY ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH
PERSON TO MAKE SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS AT ANY TIME NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY DATE
SUBSEQUENT TO THE DATE HEREOF.
2
<PAGE> 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's Annual Report on Form 10-K filed with the Commission for
the fiscal year ended March 31, 1997.
(b) The description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A filed with the Commission
on October 22, 1993, as amended by Amendment No. 1 on Form 8-A/A filed
with the Commission on October 5, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act following the date of this Prospectus and
prior to the termination of the offering contemplated hereby shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such reports and documents. The Company will provide without charge
to each person, including any beneficial owner, to whom this Prospectus is
delivered, a copy of any and all of the information that has been incorporated
by reference in this Prospectus (not including exhibits to the information that
is incorporated by reference unless such exhibits are specifically incorporated
by reference into the information that this Prospectus incorporates), upon
written or oral request to John C. Parsons, Jr., Vice President of Finance and
Operations, Chief Financial Officer and Secretary, Macromedia, Inc., 600
Townsend Street, Suite 310W, San Francisco, California 94103; telephone number
(415) 252-2000.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for the purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document that also is or is 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 Prospectus.
3
<PAGE> 5
THE COMPANY
The principal executive offices of the Company are located at 600
Townsend Street, San Francisco, California 94103 and its telephone number is
(415) 252-2000. In this Prospectus, the term "Macromedia" or "Company" refers
to Macromedia, Inc., a Delaware corporation, its predecessors and its
subsidiaries, unless the context otherwise requires.
RISK FACTORS
Investors should consider carefully the following risk factors, in
addition to the other information contained in this Prospectus, before
purchasing the shares of Common Stock offered hereby.
FLUCTUATIONS IN QUARTERLY RESULTS; PRODUCT INTRODUCTION DELAYS
The Company's quarterly operating results vary significantly depending
on the timing of product introductions and enhancements by the Company. A
substantial portion of the Company's revenues are derived from its three key
products: Director, FreeHand and Authorware, in both standalone and studio
format. The Company has in the past experienced delays in the development of
new products and enhancement of existing products, and such delays may occur in
the future. If the Company were unable, due to resource constraints or
technological or other reasons, to develop and introduce such products in a
timely manner, this inability could have a material adverse effect on the
Company's results of operations. For instance, results for the third quarter
of fiscal 1997 were significantly affected by the shipment of a new version of
FreeHand and the FreeHand Graphics Studio and by a decline in sales of Director
in anticipation of a new version which was originally expected to be released
in the fourth quarter of fiscal 1997. The release of the new version of
Director was delayed in order for the Company to perform additional quality
assurance testing before releasing the product to the market, causing a
significant decline in expected fourth quarter revenue. If the Company does
not ship new versions of its products as planned, or sales of existing versions
decline, the Company's results of operations in a given quarter could be
materially adversely affected.
The Company's quarterly results of operations also vary significantly
depending on the timing of product introductions by competitors, changes in
pricing, execution of technology licensing agreements and the volume and timing
of orders received during the quarter, which are difficult to forecast. The
future operating results of the Company may fluctuate as a result of these and
other factors, including the Company's ability to continue to develop
innovative products, its product and customer mix and the level of competition.
The Company's results of operations may also be affected by seasonal trends. A
significant portion of the Company's operating expenses is relatively fixed,
and planned expenditures are based primarily on sales forecasts. As a result,
if revenues generated in the last few weeks of a quarter do not meet the
Company's forecasts, operating results may be materially adversely affected.
For example, in fiscal 1997, actual revenues were lower than plan revenues.
Since operating expenses were budgeted based on plan revenues and the revenue
shortfall was not mitigated by a decline in operating expenses, the Company
experienced a substantial loss for fiscal 1997.
DEPENDENCE ON MACINTOSH PLATFORM
To date, a majority of the Company's revenues has been derived from
its products for the Macintosh. Although sales of the Company's products for
Windows accounted for approximately 44% of the Company's total revenues in
fiscal 1997 and are expected to become an increasingly important component of
the Company's total revenues, the Company remains heavily dependent on the sale
of products for the Macintosh platform. Apple Computer, Inc. continues to
report declining sales of its Macintosh computers, substantial losses and
additional restructurings. A continuing leveling off or decline in the sales
rate of multimedia-capable Macintosh computers or shifts in mail-order or other
distribution mechanism for Macintosh products could have a material adverse
effect on the Company's results of operations.
4
<PAGE> 6
DEPENDENCE ON DISTRIBUTORS
A substantial majority of the Company's revenues is derived from the
sale of its products through a variety of distribution channels, including
traditional software distributors, educational distributors, VARs, OEMs,
hardware and software superstores, retail dealers, mail order, and direct
sales. Domestically, the Company's products are sold primarily through
distributors, VARs and OEMs. In particular, one distributor, Ingram Micro,
Inc., accounted for 24%, 21% and 23% of revenues in fiscal 1997, 1996 and 1995,
respectively. Internationally, the Company's products are sold through
distributors. The Company's resellers generally offer products of several
different companies, including in some cases products that are competitive with
the Company's products. There can be no assurance that the Company's resellers
will continue to purchase the Company's products or provide them with adequate
levels of support. In addition, the Company believes that certain distributors
are reducing their inventory in the channel and returning unsold products to
better manage their inventories. In addition, distributors are increasingly
seeking to return unsold product, particularly when such products have been
superseded by a new version or upgrade of a product. If the Company's
distributors were to seek to return increasing amounts of products, such
returns could have a material adverse effect on the Company's revenues and
results of operations. The loss of, or a significant reduction in sales volume
to, a significant number of the Company's resellers could have a material
adverse effect on the Company's results of operations.
RISKS ASSOCIATED WITH ACQUISITIONS
Macromedia has grown in part because of combinations with other
companies. In January 1995, Macromedia acquired Altsys Corporation, which
developed the FreeHand graphic design and illustration product whose revenues
prior to that date consisted primarily of royalties from Aldus Corporation,
which had marketed FreeHand until January 1995, and revenues from Fontographer,
software for creating and modifying fonts. In August 1995, the Company
acquired Fauve Software, Inc., a developer of image editing software. In
December 1995, the Company acquired OSC, a developer of digital audio
production software. In March 1996, the Company acquired Iband, Inc., a
developer of Internet Web site development tools. In December 1996, the
Company acquired FutureWave Software, Inc., a developer of Internet graphics
and animation software.
Except for FreeHand, none of the acquired products has accounted for a
significant portion of the Company's revenues to date. Additionally, there are
integration risks associated with merging two companies including financial,
administrative and cultural concerns. There can be no assurance that sales of
the Company's existing products will either continue at historical rates or
increase, or that new products introduced by the Company, whether developed
internally or acquired, will achieve market acceptance. The Company's
historical rates of growth should not be taken as indicative of growth rates
that can be expected in the future.
INTENSE COMPETITION
The markets for the Company's products are highly competitive and are
characterized by pressure to reduce prices, incorporate new features and
accelerate the release of new product versions. For example, the decrease in
price of the Authorware Interactive Studio in the second quarter of fiscal 1997
led to an increase in unit sales but resulted in a decrease in revenue as the
unit increase was not sufficient to offset the price decrease. A number of
companies currently offer products that compete directly or indirectly with one
or more of the Company's products. These companies include Adobe Systems
Incorporated ("Adobe"), Aimtech Corporation, Apple Computer, Inc., Asymetrix
Corporation, Autodesk, Inc., Corel Corporation ("Corel"), Microsoft Corporation
("Microsoft") and Strata Incorporated. Certain of the Company's competitors or
potential competitors have significantly greater financial, management,
technical and marketing resources than the Company. As the Company competes
with larger competitors such as Adobe, Corel and Microsoft across a broader
range of product lines, the Company may face increasing competition from such
companies. The Company believes that the principal competitive factors in the
graphic arts, multimedia and Web publishing tools categories are product
features and quality, price, ease of use, brand name recognition, access to
both physical and electronic distribution channels, reliability and quality of
support services. In the event that price competition significantly increases,
competitive pressures could cause the Company to reduce the prices of its
products, which would result in reduced profit margins. Prolonged price
competition would have a material adverse effect on the Company's results of
operations and financial condition. A variety of other potential actions by
the Company's competitors, including increased promotion and accelerated
5
<PAGE> 7
introduction of new or enhanced products, could have a material adverse effect
on the Company's results of operations. Although the Company believes that its
principal products have achieved market acceptance, there can be no assurance
that they will continue to do so. Furthermore, there is a possibility that new
personal and network computer hardware platforms or new multimedia delivery
systems may provide new entrants with opportunities to gain substantial market
share in the graphic arts, multimedia or Web publishing tools market segment.
RAPIDLY CHANGING TECHNOLOGY
The developing digital media, Internet and online services markets,
and the personal computer industry in general are characterized by rapidly
changing technology, resulting in short product life cycles and rapid price
declines. The Company must continuously update its existing products to keep
them current with changing technology and must develop new products to take
advantage of new technologies that could render the Company's existing products
obsolete. The Company's future prospects are highly dependent on its ability
to increase the functionality of existing products in a timely manner and to
develop new products that address new technologies and achieve market
acceptance. Shorter product life cycles may lead to inventory obsolescence
problems. In the fourth quarter of fiscal 1997, the Company was adversely
affected by the delay in the release of the upgraded version of Director from
the fourth quarter of fiscal 1997 to the first quarter of fiscal 1998. New
products and enhancements must keep pace with competitive offerings, adapt to
new platforms and emerging industry standards and provide additional
functionality. There can be no assurance that the Company will be successful
in these efforts. In addition, due to the uncertainties associated with the
developing multimedia market, particularly with regard to the Internet and
on-line environments, there can be no assurance that the Company will be able
to forecast product demand accurately or to respond in a timely manner to
changing technologies and customer requirements.
RISKS OF INTERNATIONAL OPERATIONS
For the twelve months ended March 31, 1997, the Company derived
approximately 51% of its total revenues from international sales. The Company
expects that international sales will continue to generate a significant
percentage of its total revenues. The Company relies on distributors for sales
of its products in foreign countries and, accordingly, is dependent on their
ability to promote and support the Company's products and, in some cases, to
translate them into foreign languages. International business is subject to a
number of special risks, including foreign government regulation, general
geopolitical risks, such as political and economic instability, hostilities
with neighboring countries and changes in diplomatic and trade relationships,
more prevalent software piracy, unexpected changes in, or imposition of,
regulatory requirements, tariffs, import and export restrictions and other
barriers and restrictions, longer payment cycles, greater difficulty in
accounts receivable collection, potentially adverse tax consequences, the
burdens of complying with a variety of foreign laws, foreign currency risk and
other factors beyond the control of the Company. As of April 1, 1996, the
Company's revenues generated through international sales in certain European
countries are denominated in local currency, while expenses continue to be
denominated in the local currency of the countries in which the Company has
offices. As a result of this program, the Company has entered into hedging
contracts to protect it from exchange rate fluctuations. As of March 31, 1997,
the contracts outstanding totaled $5,022,000. These contracts are of a
short-term duration and the fair value of such contracts equals the market
value as of March 31, 1997.
LIMITED BACKLOG
Customers generally order on an as needed basis, and the Company
normally ships products within a few weeks after receipt of an order.
Accordingly, the Company has historically operated without a substantial
backlog. From time to time, a disproportionate percentage of the Company's
quarterly revenues is generated in the last few weeks of the quarter, which
increases the difficulty in forecasting sales accurately. While the Company is
attempting to increase its backlog, the absence of substantial backlog could
limit the ability of the Company to plan production and inventory levels, which
could lead to adverse fluctuations in results of operations.
6
<PAGE> 8
DEVELOPING MULTIMEDIA MARKET
The market for multimedia authoring tools is still developing and is
dependent on the demand for multimedia applications. The demand for multimedia
applications is dependent upon a number of variables, including the installed
base of multimedia-capable personal computers, the widespread availability of
digital media and the number of skilled developers writing applications. The
demand for multimedia applications is also dependent upon the availability of
developing online services and communications networks, including the Internet
and emerging interactive cable television systems, and the integration of
multimedia software with these online services and communications networks. In
addition, the methods of distributing multimedia and other software continue to
evolve. For instance, software products are now becoming directly accessible
to the end-user via the Internet and commercial on-line services. The failure
of the Company to keep pace with the changes in the multimedia software
distribution channels could provide its competitors or new market entrants with
an advantage in gaining widespread market acceptance of their products. Even
if there is an increase in demand for multimedia applications, it is not
expected that the demand for multimedia authoring tools will increase at the
same rate. There can be no assurance that the market for multimedia
applications or authoring tools will develop at the rate contemplated by the
Company or that the demand for multimedia authoring tools will grow at a rate
sufficient to support the Company's business plans.
RISK OF PRODUCT RETURNS
The Company grants its distributors limited rights under a stock
balancing policy to return unsold inventories of the Company's products in
exchange for new purchases. The Company expects that the rate of new product
introductions by participants in the multimedia software tools market segment
will increase, which could lead to an increased rate of return of the Company's
products. Although the Company provides allowances for anticipated product
returns, and believes its existing policy results in the establishment of
allowances that are adequate, and have been adequate in the past, there can be
no assurance that product returns will not exceed such allowances in the
future. In addition, the Company provides price protection to its
distributors. Although the Company accrues for such price protection in its
allowance for product returns, and such accruals have been adequate in the
past, a decrease in the price of the Company's products could have a material
adverse effect on the Company's results of operations. See "-- Dependence on
Distributors."
DEPENDENCE ON KEY PERSONNEL
The Company's success depends to a significant degree upon the
continued contributions of its key management, product development, sales,
marketing and operations personnel. The Company does not maintain any key
person life insurance policies. The Company believes its future success will
also depend in large part upon its ability to attract and retain highly skilled
managerial, engineering, sales, marketing and operations personnel, many of
whom are in great demand. Competition for such personnel is intense, and there
can be no assurance that the Company will be successful in attracting and
retaining such personnel. Failure to attract and retain key personnel could
have a material adverse effect on the Company's results of operations.
DEPENDENCE ON THIRD PARTY FOR MANUFACTURING AND SHIPPING
The Company is dependent on a sole source, Stream International
("Stream"), for the manufacture and shipment of its finished products. The
manufacture of the Company's products typically consists of duplicating
diskettes, pressing CD-ROMs, printing manuals and packaging and assembling
finished products, all of which are in accordance with the Company's
specifications and forecasts. The Company currently performs quality assurance
testing at its own facilities. Stream operates multiple facilities that are
capable of serving the Company's needs, and the Company believes any
alternative sources could not be implemented without undue delay. To date, the
Company has not experienced any material difficulties or delays in the
manufacture or assembly of its products or material returns due to product
defects. Looking forward, the Company believes that manufacturing and shipping
will include not only copying bits onto disks for physical distribution, but
also copying bits onto servers for electronic distribution.
7
<PAGE> 9
LIMITED PROTECTION OF PROPRIETARY TECHNOLOGY
The Company relies on a combination of copyright, trade secret, and
trademark laws and employee third-party nondisclosure agreements to protect its
intellectual property rights and products. The Company distributes its
software under a "shrink-wrap" license agreement and generally does not obtain
signed license agreements from its end users. There is a possibility that such
shrink-wrap licenses may not be enforceable in certain jurisdictions. The
Company uses a hardware lock-out device with respect to certain versions of its
software that are sold internationally but otherwise does not copy-protect its
software. It may be possible for unauthorized third parties to copy the
Company's products or to reverse engineer or obtain and use information that
the Company regards as proprietary. There can be no assurance that the
Company's competitors will not independently develop technologies that are
substantially equivalent or superior to the Company's technologies. Policing
unauthorized use of the Company's products is difficult, and while the Company
is unable to determine the extent to which software piracy of its products
exists, software piracy can be expected to be a persistent problem. In
addition, the laws of certain countries in which the Company's products are or
may be distributed do not protect the Company's products and intellectual
rights to the same extent as do the laws of the United States. The Company is
a member of the Business Software Alliance (BSA) and the Software Publishers
Association (SPA) and supports their efforts to stop the unauthorized
distribution of software.
The Company believes that software will increasingly become the
subject of claims that such software infringes the rights of others. The
Company believes that its products, intellectual property, and other
proprietary rights do not infringe on the proprietary rights of third parties.
From time to time, however, the Company has received communications from third
parties asserting that features or contents of certain of the Company's
products may infringe intellectual property rights of such third parties. To
date, no such claim has resulted in litigation or in the payment of any claims,
and the Company believes that the impact of any such known claims will be
immaterial. However, as the number of software products in the industry
increases and the functionality of these products further overlaps, the Company
believes that its software increasingly will become the subject of claims that
such software infringes the rights of others. There can be no assurance that
third parties will not assert infringement claims against the Company in the
future or that any such assertion will not result in costly litigation or
require the Company to obtain a license to intellectual property rights of
third parties. There can be no assurance that such licenses will be available
on reasonable terms, or at all. The Company licenses certain software products
from other companies to create suites of multimedia products. There can be no
assurance that upon the expiration of these licenses, such licenses will be
available on reasonable terms or at all, or that similar products could be
obtained to substitute into the suites.
FACTORS INHIBITING TAKEOVER
The Company's Board of Directors can, without obtaining stockholder
approval, issue shares of Preferred Stock having rights that could adversely
affect the voting power of holders of the Company's Common Stock. The issuance
of Preferred Stock may delay, defer or prevent a change in control of the
Company. In addition, Section 203 of the Delaware General Corporation Law
restricts certain business combinations with any "interested stockholder" as
defined by such statute. The statute may delay, defer or prevent a change in
control of the Company.
VOLATILITY OF STOCK PRICE
The prices for the Company's Common Stock have fluctuated widely in
the past. The management of the Company believes that such fluctuations may
have been caused by announcements of new products, quarterly fluctuations in
the results of operations, announcements of technical innovations or new
products or services by Macromedia or its competitors, changes in earnings
estimates by securities analysts and other factors, including changes in
conditions of the personal computer industry in general and to a certain
extent, the Internet market in
8
<PAGE> 10
particular. Stock markets have experienced extreme price volatility in recent
years. This volatility has had a substantial effect on the market prices of
securities issued by the Company and other high technology companies, often for
reasons unrelated to the operating performance of the specific companies. The
trading prices of many high technology companies' stocks, including the stock
of the Company, are at or near their historical highs and reflect
price/earnings ratios substantially above historical norms. There can be no
assurance that the trading price of the Company's stock will remain at or near
its current level.
9
<PAGE> 11
SELLING STOCKHOLDERS
Each FutureWave Selling Stockholder acquired the shares of Common
Stock offered by such Selling Stockholder hereby in connection with the
Company's aquisition of FutureWave in which the FutureWave Selling Stockholders
exchanged their capital stock of FutureWave for Common Stock of the Company.
The Iband Selling Stockholder acquired the shares of Common Stock offered by
such Selling Stockholder hereby in connection with the Company's acquisition of
Iband, in which the Iband Selling Stockholder and the other stockholders of
Iband, exchanged their capital stock of Iband for Common Stock of the Company.
Except as described below, neither the Iband Selling Stockholder nor any
FutureWave Selling Stockholder (together, the "Selling Stockholders") has had
any position, office or other material relationship with the Company within the
past three years.
FUTUREWAVE SELLING STOCKHOLDER EMPLOYMENT AGREEMENTS AND NONCOMPETITION
AGREEMENTS
Under employment agreements with the Company, Jonathan Gay and Robert
Tatsumi each agreed to serve for three years as employees of the Company. Each
of Jonathan Gay, Robert Tatsumi, Linda Michelle Welsh and Charles Jackson also
entered into noncompetition agreements with the Company.
IBAND SELLING STOCKHOLDER EMPLOYMENT AGREEMENT AND NONCOMPETITION AGREEMENT
Under an employment agreement with the Company, Anthony Wood agreed to
serve for two years as Vice President, Internet Authoring. Mr. Wood also
entered into a noncompetition agreement with the Company.
FUTUREWAVE ESCROW AGREEMENT
Under an Escrow Agreement (the "FutureWave Escrow Agreement") dated
December 31, 1996, each FutureWave Selling Stockholder has placed 10% of his or
her merger shares into escrow (the "FutureWave Escrow Shares") as security for
the indemnification obligations of FutureWave and the FutureWave Selling
Stockholders under the Agreement and Plan of Reorganization (the "FutureWave
Plan") dated December 31, 1996 among the Company, FutureWave and the FutureWave
Selling Stockholders. These indemnification obligations relate to a breach of
the representations and warranties of FutureWave and the FutureWave
Stockholders in the FutureWave Plan. The Company may seek indemnification
regarding the breach of certain representations and warranties until December
31, 1997. The FutureWave Escrow Agreement expires on December 31, 1997 and all
FutureWave Escrow Shares remaining will be released at that time. The maximum
liability of the FutureWave Selling Stockholders to the Company under such
indemnification obligations is limited to the shares and any other property
held in escrow.
IBAND ESCROW AGREEMENT
Under an Escrow Agreement (the "Iband Escrow Agreement") dated March
13, 1996, the Iband Selling Stockholder and one other stockholder of Iband had
each placed 10% of his merger shares into escrow (the "Iband Escrow Shares") as
security for the indemnification obligations of Iband and the Iband Selling
Stockholders under the Agreement and Plan of Reorganization dated March 13,
1996 among the Company, Iband, the Iband Selling Stockholder and this other
stockholder of Iband. The Iband Escrow Agreement expired on September 13, 1996
and all Iband Escrow Shares were released at that time.
10
<PAGE> 12
The following table sets forth certain information known to the
Company with respect to the beneficial ownership of the Company's Common Stock
as of June 30, 1997 by each Selling Stockholder named below. The following
table assumes each Selling Stockholder sells all of the shares offered hereby.
The Company is unable at this time to determine the exact number of shares that
will actually be sold.
<TABLE>
<CAPTION>
Name Shares Beneficially Shares
Owned Prior to Offering Shares Beneficially
----------------------- Being Owned After
Number Percent Offered Offering Percent
------ ------- ------- -------- -------
<S> <C> <C> <C> <C> <C>
Anthony Wood (1) 483,541 1.2% 474,828 8,713 *
Jackson Living Trust
DTD July 15, 1992 236,841 * 236,841 -- *
Jonathan Gay 236,841 * 236,841 -- *
Robert Tatsumi 31,578 * 31,578 -- *
Linda Michelle Welsh 94,736 * 94,736 -- *
</TABLE>
____________________
* Less than 1%.
(1) Includes 8,713 shares subject to options exercisable within 60 days of
June 30, 1997.
11
<PAGE> 13
PLAN OF DISTRIBUTION
In connection with the Company's acquisition of Iband, the Company,
certain stockholders of the Company, the Iband Selling Stockholder and certain
other parties entered into and approved Amendment Number Six to the Company's
Investor Rights Agreement (the "Agreement"). In connection with the Company's
acquisition of FutureWave, the Company, certain stockholders of the Company and
the FutureWave Selling Stockholders entered into and approved Amendment Number
Seven to the Agreement. The Registration Statement of which this Prospectus
forms a part has been filed pursuant to the Agreement. To the Company's
knowledge, no Selling Stockholder has entered into any agreement, arrangement
or understanding with any particular broker or market maker with respect to the
shares offered hereby, nor does the Company know the identity of the brokers or
market makers that will participate in the offering.
The Selling Stockholders' shares of Common Stock covered hereby may be
offered and sold from time to time by the Selling Stockholders. The Selling
Stockholders will act independently of the Company in making decisions with
respect to the timing, manner and size of each sale. As part of the Agreement,
the Selling Stockholders agreed that they would sell the shares of Common Stock
offered hereby only in brokers' transactions, as defined in Rule 144
promulgated under the Securities Act. In general, brokers' transactions are
ones in which the broker merely executes the sell order, receives no more than
the customary commission and does not solicit orders to buy the shares. No
assurances can be given that the Selling Stockholders will sell any of the
shares that are subject to this Prospectus or that any Selling Stockholder will
not sell such shares in a private transaction or other transaction that is
exempt from the registration requirements of the Securities Act. The Company
has been advised by the Selling Stockholders that they have not, as of the date
hereof, entered into any arrangement with a broker- dealer for the sale of
shares. In effecting sales, broker-dealers engaged by the Selling Stockholders
may arrange for other broker-dealers to participate. Broker-dealers will
receive commissions or discounts from the Selling Stockholders in amounts to be
negotiated immediately prior to the sale.
In offering the shares, the Selling Stockholders and any
broker-dealers who execute sales for the Selling Stockholders may be deemed to
be "underwriters" within the meaning of the Securities Act in connection with
such sales, and any profits realized by the Selling Stockholders and the
compensation of such broker-dealer may be deemed to be underwriting discounts
and commissions.
The Selling Stockholders have advised the Company that, during such
time as they may be engaged in a distribution of the shares of Common Stock
included herein, they will comply with Regulation M under the Exchange Act and,
in connection therewith, the Selling Stockholders have agreed not to engage in
any stabilization activity in connection with any securities of the Company and
not to bid for or purchase any securities of the Company or attempt to induce
any person to purchase any securities of the Company except as permitted under
the Exchange Act. The Selling Stockholders have also agreed to furnish copies
of this Prospectus to each broker-dealer through which the shares of Common
Stock included herein may be offered and to inform the Company and
broker-dealers through whom sales may be made hereunder when the distribution
of the shares is completed.
Regulation M under the Exchange Act prohibits participants in a
distribution from bidding for or purchasing for an account in which the
participant has a beneficial interest, any of the securities that are the
subject of a distribution and it governs bids and purchases made to stabilize
the price of a security in connection with a distribution of the security.
Pursuant to the Agreement, no Selling Stockholder may sell any of the
shares of Common Stock offered hereby without first submitting a written notice
to the Company (the "Notice of Resale"). The Company must notify the Selling
Stockholder as soon as practicable, but in no event more than five business
days after receipt of the Notice of Resale whether it believes this Prospectus
is current (with the Company using the five business day period to supplement
this Prospectus or make an appropriate filing under the Exchange Act) or should
be amended prior to use in connection with such sale (with the Company amending
the Registration Statement as soon as practicable). With respect to the Iband
Selling Stockholder, once the Company has notified the Iband Selling
Stockholder that this Prospectus is available for use, the Iband Selling
Stockholder will have 30 days (an "Iband Permitted Window") within which to
sell shares of Common Stock. Pursuant to the Agreement, there will be a
maximum of three Iband Permitted Windows for the Iband Selling Stockholder and
there will be at least a 90-day interval between any two
12
<PAGE> 14
Iband Permitted Windows. Under certain circumstances once in any twelve-month
period, the Company is permitted to postpone the commencement of an Iband
Permitted Window for up to 90 days after receipt of a Notice of Resale by the
Iband Selling Stockholder. With respect to the FutureWave Selling
Stockholders, once the Company has notified the FutureWave Selling Stockholders
that this Prospectus is available for use, the FutureWave Selling Stockholders
who made a request for sale may do so for the period commencing on the third
business day after the release of the Company's quarterly or annual earnings
report, as the case may be, to the public and ending thirty days before the end
of the next fiscal quarter (a "FutureWave Permitted Window"). Under certain
circumstances, the Company is permitted to postpone the commencement of a
FutureWave Permitted Window. In addition, the Agreement provides that neither
the Iband Selling Stockholder nor the FutureWave Selling Stockholders will sell
pursuant to this Prospectus, within 12 months, after the effective date of the
merger in which such Selling Stockholder's shares were received, 50% or more of
such Selling Stockholder's received in such merger.
This offering will terminate as to each Selling Stockholder on the
earlier of the date on which all shares offered by such Selling Stockholder
hereby may be sold under Rule 144 or the date on which all shares offered
hereby have been sold by such Selling Stockholder. There can be no assurance
that any of the Selling Stockholders will sell any or all of the shares of
Common Stock offered hereby.
LEGAL MATTERS
The validity of the issuance of the shares of Common Stock offered
hereby will be passed upon for the Company by Fenwick & West LLP, Two Palo Alto
Square, Suite 800, Palo Alto, California 94306.
EXPERTS
The consolidated financial statements of Macromedia as of March 31,
1996 and 1997, and for each of the years in the three-year period ended March
31, 1997 included in the Company's Annual Report (Form 10-K) for the year ended
March 31, 1997 have been audited by KPMG Peat Marwick LLP, independent
certified public accountants, as set forth in their report thereon included
therein and incorporated herein by reference. Such financial statements have
been incorporated herein by reference in reliance upon such report and upon the
authority of said firm as experts in accounting and auditing. KPMG Peat
Marwick LLP did not audit the financial statements of Altsys Corporation, a
company acquired by Macromedia in a business combination accounted for as a
pooling of interests, as of and for the nine months ended September 30, 1994.
Those financial statements were combined with the financial statements of
Macromedia for the years ended March 31, 1995 and reflect total revenues
constituting 10% in fiscal 1995 of the related consolidated totals. The Altsys
Corporation financial statements were audited by Arthur Andersen LLP, whose
report has been furnished to KPMG Peat Marwick LLP, and the opinion of KPMG
Peat Marwick LLP, insofar as it relates to the amounts included for Altsys
Corporation as of and for the nine months ended September 30, 1994, is based
solely on the report of Arthur Andersen LLP.
13
<PAGE> 15
================================================================================
MACROMEDIA, INC.
1,074,824 Shares of
Common Stock
____________________
PROSPECTUS
____________________
================================================================================
<PAGE> 16
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses to be paid by the Registrant in connection with
this offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee $ 1,671
Nasdaq National Market filing fee 12,000
Accounting fees and expenses 10,000
Legal fees and expenses 10,000
Printing and Miscellaneous 1,329
Total $35,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant 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 corporation or its stockholders; (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law;
(iii) under section 174 of the Delaware General Corporation Law; or (iv) for
any transaction from which the director derived an improper personal benefit.
In addition, as permitted by Section 145 of the Delaware General Corporation
Law, the Bylaws of the Registrant provide that (i) the Registrant is required
to indemnify its directors and executive officers to the fullest extent
permitted by the Delaware General Corporation Law; (ii) the Registrant may, in
its discretion, indemnify other officers, employees and agents as set forth in
the Delaware General Corporation Law; (iii) upon receipt of an undertaking to
repay such advances if indemnification is determined to be unavailable, the
Registrant is required to advance expenses, as incurred, to its directors and
executive officers to the fullest extent permitted by the Delaware General
Corporation Law in connection with a proceeding (except if a determination is
reasonably and promptly made by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to the proceeding or, in
certain circumstances, by independent legal counsel in a written opinion that
the facts known to the decision-making party demonstrate clearly and
convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
Registrant); (iv) the rights conferred in the Bylaws are not exclusive and the
Registrant is authorized to enter into indemnification agreements with its
directors, officers, employees and agents; (v) the Registrant may not
retroactively amend the Bylaw provisions relating to indemnity; and (vi) to the
fullest extent permitted by the Delaware General Corporation Law, a director or
executive officer will be deemed to have acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe that his or her conduct was unlawful, if his or
her action is based on the records or books of account of the corporation or on
information supplied to him or her by officers of the corporation in the course
of their duties or on the advice of legal counsel for the corporation or on
information or records given or reports made to the corporation by independent
certified public accountants or appraisers or other experts.
The Registrant's policy is to enter into indemnification agreements
with each of its directors and executive officers. The indemnification
agreements provide that directors and executive officers will be indemnified
and held harmless to the fullest extent permitted by law including against all
expenses (including attorneys' fees), judgments, fines and settlement amounts
paid or reasonably incurred by them in any action, suit or proceeding,
including any derivative action by or in the right of the Registrant, on
account of their services as directors, officers, employees or agents of the
Registrant or as directors, officers, employees or agents of any other company
or enterprise when they are serving in such capacities at the request of the
Registrant. The Registrant will not be obligated pursuant to the agreements to
indemnify or advance expenses to an indemnified party with respect to
proceedings or claims (i) initiated by the indemnified party and not by way of
defense, except with respect to a proceeding authorized by the Board of
Directors and successful proceedings brought to enforce a right to
indemnification under the
II-1
<PAGE> 17
indemnification agreement; (ii) for any amounts paid in settlement of a
proceeding unless the Registrant consents to such settlement; (iii) on account
of any suit in which judgment is rendered against the indemnified party for an
accounting of profits made from the purchase or sale by the indemnified party
of securities of the Registrant pursuant to the provisions of Section 16(b) of
the Exchange Act, and related laws; (iv) on account of conduct by a director
that is finally adjudged to have been in bad faith or conduct that the director
did not reasonably believe to be in, or not opposed to, the best interests of
the Registrant; (v) on account of any criminal action or proceeding arising out
of conduct that the director had reasonable cause to believe was unlawful; or
(vi) if a final decision by a court having jurisdiction in the matter shall
determine that such indemnification is not lawful.
The indemnification agreement also provides for contribution in
certain situations in which the Registrant and a director or executive officer
are jointly liable but indemnification is unavailable, such contribution to be
based on the relative benefits received and the relative fault of the
Registrant and the director or executive officer. Contribution is not allowed
in connection with a Section 16(b) judgment, an adjudication of bad faith or
conduct that a director or executive officer did not reasonably believe to be
in, or not opposed to, the best interests of the Registrant, or a proceeding
arising out of conduct a director or executive officer had reasonable cause to
believe was unlawful.
The indemnification agreement requires a director or executive officer
to reimburse the Registrant for all expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, the indemnification agreement or otherwise to
be indemnified for such expenses. The indemnification agreement provides that
it is not exclusive of any rights a director or executive officer may have
under the Certificate of Incorporation, Bylaws, other agreements, any
majority-in-interest vote of the stockholders or vote of disinterested
directors, Delaware law or otherwise.
The indemnification provision in the Bylaws, and the indemnification
agreements entered into between the Registrant and its directors and executive
officers, may be sufficiently broad to permit indemnification of the
Registrant's executive officers and directors for liabilities arising under the
Securities Act.
As authorized by the Bylaws, the Registrant, with Board approval, has
purchased director and officer liability insurance.
L. John Doerr is indemnified by Kleiner Perkins Caufield & Byers in
his capacity as a director of the Registrant.
Reference is made to the Underwriting Agreement filed as Exhibit 1.01
to Registrant's Registration Statement on Form S-3 declared effective by the
Commission on August 3, 1995 (No. 33-94748), the Underwriting Agreement filed
as Exhibit 1.01 to Registrant's Registration Statement on Form S-1 declared
effective by the Commission on December 10, 1993 (No. 33-70624) and to the
following documents incorporated by reference herein as indicated below
regarding relevant indemnification provisions described above:
DOCUMENT
1 -- Registrant's Amended and Restated Certificate of
Incorporation (incorporated herein by reference to Exhibit
4.01 to the Registrant's Registration Statement on Form
S-8 (File No. 33-89092) effective February 3, 1995).
2 -- Registrant's Certificates of Amendment to Amended and
Restated Certificate of Incorporation (incorporated herein
by reference to Exhibit 3.02 to Registrant's Form 8A/A
filed October 5, 1995).
3 -- Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.02 to the Registrant's Registration Statement on
Form S-1 (File No. 33-70624) declared effective December
10, 1993 (the "Form S-1")).
II-2
<PAGE> 18
4 -- Investor Rights Agreement, dated as of March 31, 1992, as
amended April 1, 1992, between the Registrant and various
investors (incorporated herein by reference to Exhibit
4.01 to the Form S-1).
5 -- Amendment to Investor Rights Agreement effective January
20, 1995 (incorporated herein by reference to Exhibit 4.02
to the Registrant's Annual Report on Form 10- K for the
fiscal year ended March 31, 1995).
6 -- Amendment Number Three to Investor Rights Agreement
effective July 12, 1995 (incorporated herein by reference
to Exhibit 4.03 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1995).
7 -- Amendment Number Four to Investor Rights Agreement
effective August 31, 1995 (incorporated herein by
reference to Exhibit 4.04 to the Registrant's Amendment
No. 1 to Form 8-A filed October 5, 1995).
8 -- Amendment Number Five to Investor Rights Agreement
effective December 2, 1995. (incorporated herein by
reference to Exhibit 4.06 to the Registrant's Registration
Statement on Form S-3 declared effective February 8,
1996).
9 -- Amendment Number Six to Investor Rights Agreement
effective March 14 1996. (filed as Exhibit 4.06 to the
Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1996).
10 -- Amendment No. Seven to Investor Rights Agreement effective
December 31, 1996 (filed as exhibit 4.07 to the
Registrant's Annual Report on Form 10-K for the fiscal
year ended March 31, 1997).
11 -- Form of Indemnification Agreement (incorporated herein by
reference to Exhibit 10.8 to the Form S-1).
ITEM 16. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
herein:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- ------ -------------
<S> <C> <C>
2.01 -- Agreement and Plan of Reorganization by and among the Registrant, Authorware, Inc. and MacroMind/Paracomp,
Inc., dated as of February 28, 1992, and certain exhibits thereto (incorporated herein by reference to
Exhibit 2.01 to the Form S-1).
2.02 -- Agreement and Plan of Reorganization among MacroMind, Inc., Paracomp, Inc. and Certain Shareholders of
Paracomp, Inc. dated August 21, 1991, as amended October 11, 1991 and certain exhibits thereto (incorporated
herein by reference to Exhibit 2.02 to the Form S-1).
2.03 -- Agreement and Plan of Reorganization dated October 26, 1994, between the Registrant and Altsys Corporation
(incorporated herein by reference to Exhibit 2.03 to the Registrant's Registration Statement on Form S-4
(File No. 33-87264) declared effective on December 14, 1994).
2.04 -- Agreement of Merger and Articles of Merger dated January 20, 1995 entered into by the Registrant and Altsys
Corporation (incorporated herein by reference to Exhibit 2.04 to the Registrant's Quarterly Report on Form
10-Q for the quarter ended December 31, 1994).
2.05 -- Agreement and Plan of Reorganization dated as of August 30, 1995, by and between Macromedia and Fauve and
related documents. (Incorporated herein by reference to
</TABLE>
II-3
<PAGE> 19
<TABLE>
<S> <C> <C>
Exhibit 2.01 to the Registrant's Current Report on Form 8-K dated August 31, 1995 (the "Fauve 8-K")).
2.06 -- Agreement of Merger dated as of August 30, 1995, by and between Macromedia and Fauve (Incorporated herein by
reference to Exhibit 2.02 to the Fauve 8-K.)
4.01 -- Investor Rights Agreement, dated as of March 31, 1992, as amended April 1, 1992, between the Registrant and
various investors (incorporated herein by reference to Exhibit 4.02 to the Form S-1).
4.02 -- Amendment Number Two to Investor Rights Agreement effective January 20, 1995 (incorporated herein by reference
to Exhibit 4.02 to the Registrant's Annual Report on Form 10-K for the fiscal year ended March 31, 1995).
4.03 -- Amendment Number Three to Investor Rights Agreement effective July 12, 1995 (incorporated herein by reference
to Exhibit 4.03 to the Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995).
4.04 -- Amendment Number Four to Investor Rights Agreement effective August 30, 1995 (incorporated herein by reference
to Exhibit 4.04 to the Registrant's Amendment No. 1 to Form 8-A filed October 5, 1995).
4.05 -- Amendment Number Five to Investor Rights Agreement effective December 2, 1995 (incorporated herein by reference
to Exhibit 4.06 to the Registrant's Registration Statement on Form S-3 declared effective February 8, 1996).
4.06 -- Amendment Number Six to Investor Rights Agreement, effective March 14, 1996 (incorporated herein by reference
to exhibit 4.06 to the Registrant's Annual Report on Form 10-K for the fiscal year ended March 31, 1996).
4.07 -- Amendment Number Seven to Investor Rights Agreement, effective December 31, 1996 (incorporated herein by
reference to Exhibit 4.07 to the Registrant's Annual Report on Form 10-K for the fiscal year ended March 31,
1997).
5.01 -- Opinion of Fenwick & West regarding the legality of the securities being issued.
23.01 -- Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.02 -- Consent of Fenwick & West (included in Exhibit 5.01).
23.03 -- Consent of Arthur Andersen LLP.
24.01 -- Power of Attorney (see page II-6).
</TABLE>
ITEM 17. UNDERTAKINGS.
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 provisions described under Item 15 above, 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.
II-4
<PAGE> 20
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 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 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 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 (i) and (ii)
do not apply if the information required to be included in a post-effective
amendment thereby 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 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.
(4) 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-5
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all for the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on the 24th day
of July, 1997.
MACROMEDIA, INC.
By: /s/ John C. Parsons, Jr.
----------------------------------
John C. Parsons, Jr.
Vice President of Finance Operations,
Chief Financial Officer and Secretary
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Robert K. Burgess and John C. Parsons,
Jr., and each of them, his attorneys-in-fact, and agents, each with the power
of substitution, for him and in his name, place and stead, 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 all documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, 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 to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
his or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ Robert K. Burgess President and Director July 24, 1997
- ----------------------------------
Robert K. Burgess
PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER:
/s/ John C. Parsons, Jr. Vice President of Finance Operations July 24, 1997
- ---------------------------------- and Chief Financial Officer
John C. Parsons, Jr.
ADDITIONAL DIRECTORS:
/s/ John C. Colligan Director July 24, 1997
- ----------------------------------
John C. Colligan
Director July __, 1997
- ----------------------------------
Kevin F. Crowder
/s/ L. John Doerr Director July 24, 1997
- ----------------------------------
L. John Doerr
/s/ John (Ian) Giffen Director July 24, 1997
- ----------------------------------
John (Ian) Giffen
/s/ C. Richard Kramlich Director July 24, 1997
- ----------------------------------
C. Richard Kramlich
/s/ John C. Laing Director July 24, 1997
- ----------------------------------
John C. Laing
/s/ Donald L. Lucas Director July 24, 1997
- ----------------------------------
Donald L. Lucas
/s/ William B. Welty Director July 24, 1997
- ----------------------------------
William B. Welty
/s/ James R. Von Ehr II Director July 24, 1997
- ----------------------------------
James R. Von Ehr II
</TABLE>
II-6
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
- ------ ------------- ----
<S> <C> <C> <C>
2.01 -- Agreement and Plan of Reorganization by and among the Registrant,
Authorware, Inc. and MacroMind/Paracomp, Inc., dated as of February 28,
1992, and certain exhibits thereto (incorporated herein by reference to
Exhibit 2.01 to the Form S-1).
2.02 -- Agreement and Plan of Reorganization among MacroMind, Inc., Paracomp,
Inc. and Certain Shareholders of Paracomp, Inc. dated August 21, 1991,
as amended October 11, 1991 and certain exhibits thereto (incorporated
herein by reference to Exhibit 2.02 to the Form S-1).
2.03 -- Agreement and Plan of Reorganization dated October 26, 1994, between the
Registrant and Altsys Corporation (incorporated herein by reference to
Exhibit 2.03 to the Registrant's Registration Statement on Form S-4
(File No. 33-87264) declared effective on December 14, 1994).
2.04 -- Agreement of Merger and Articles of Merger dated January 20, 1995
entered into by the Registrant and Altsys Corporation (incorporated
herein by reference to Exhibit 2.04 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended December 31, 1994).
2.05 -- Agreement and Plan of Reorganization dated as of August 30, 1995, by and
between Macromedia and Fauve and related documents. (Incorporated
herein by reference to Exhibit 2.01 to the Registrant's Current Report
on Form 8-K dated August 31, 1995 (the "Fauve 8-K")).
2.06 -- Agreement of Merger dated as of August 30, 1995, by and between
Macromedia and Fauve. (Incorporated herein by reference to Exhibit 2.02
to the Fauve 8-K.)
4.01 -- Investor Rights Agreement, dated as of March 31, 1992, as amended April
1, 1992, between the Registrant and various investors (incorporated
herein by reference to Exhibit 4.02 to the Form S-1).
4.02 -- Amendment Number Two to Investor Rights Agreement effective January 20,
1995 (incorporated herein by reference to Exhibit 4.02 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended March
31, 1995).
4.03 -- Amendment Number Three to Investor Rights Agreement effective July 12,
1995 (incorporated herein by reference to Exhibit 4.03 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended June
30, 1995).
4.04 -- Amendment Number Four to Investor Rights Agreement effective August 31,
1995 (incorporated herein by reference to Exhibit 4.04 to the
Registrant's Amendment No. 1 to Form 8-A filed October 5, 1995).
4.05 -- Amendment Number Five to Investor Rights Agreement effective December 2,
1995 (incorporated herein by reference to Exhibit 4.06 to the
Registrant's Registration Statement on Form S-3 declared effective
February 8, 1996).
4.06 -- Amendment Number Six to Investor Rights Agreement, effective March 14,
1996 (incorporated herein by reference to exhibit 4.06 to the
Registrant's Annual Report on Form 10-K for the fiscal year ended March
31, 1996).
</TABLE>
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE PAGE
- ------ ------------- ----
<S> <C> <C> <C>
4.07 -- Amendment Number Seven to Investor Rights Agreement, effective December 31,
1996 (incorporated herein by reference to Exhibit 4.07 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended March 31, 1997).
5.01 -- Opinion of Fenwick & West regarding the legality of the securities being
issued.
23.01 -- Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.02 -- Consent of Fenwick & West (included in Exhibit 5.01).
23.03 -- Consent of Arthur Andersen LLP
24.01 -- Power of Attorney (see page II-6).
</TABLE>
<PAGE> 1
EXHIBIT 5.01
July 24, 1997
Macromedia, Inc.
600 Townsend Street
San Francisco, CA 94103
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-3 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission (the "Commission") on or about July 25, 1997 in connection
with the registration under the Securities Act of 1933, as amended, of an
aggregate of 1,074,824 shares of your Common Stock (the "Stock"), all of which
are presently issued and outstanding and will be sold by certain of your
stockholders (the "Selling Stockholders").
In rendering this opinion, we have examined the following:
(1) the Registration Statement, together with the exhibits filed
as a part thereof and the documents incorporated by reference
thereto;
(2) the Prospectus prepared in connection with the Registration
Statement and the documents incorporated by reference thereto;
(3) The Agreement and Plan of Reorganization dated March 14, 1996
among you, Iband, Inc. and the shareholders of Iband, Inc. and
the exhibits and schedules attached thereto;
(4) The Agreement and Plan of Reorganization dated December 31,
1996 among you, FutureWave Software, Inc. and the shareholders
of FutureWave Software, Inc. and the exhibits and schedule
attached thereto;
(5) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors that are contained in your
minute books that are in our possession;
(6) Your Amended and Restated Certificate of Incorporation dated as
of August 17, 1994 as amended by the Certificate of Amendment
to Amended and Restated Certificate of Incorporation dated
September 22, 1995 (collectively, the "Certificate of
Incorporation") and your Bylaws as amended to date (the
"Bylaws"); and
(7) a Management Certificate addressed to us and dated of even date
herewith executed by the Company containing certain factual and
other representations.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all
<PAGE> 2
Macromedia, Inc.
July 24, 1997
Page 2
documents submitted to us as copies, the legal capacity of all natural persons
executing the same, the lack of any undisclosed terminations, modifications,
waivers or amendments to any documents reviewed by us and the due execution and
delivery of all documents where due execution and delivery are prerequisites to
the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from records
included in the documents referred to above. We have made no independent
investigation or other attempt to verify the accuracy of any of such
information or to determine the existence or non- existence of any other
factual matters; however, we are not aware of any facts that would lead us to
believe that the opinion expressed herein is not accurate.
Based upon the foregoing, it is our opinion that the 1,074,824 shares
of Stock to be sold by the Selling Stockholders pursuant to the Registration
Statement are legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us, if any, in
the Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the
your use as an exhibit to the Registration Statement for the purpose of the
above sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Fenwick & West LLP
FENWICK & WEST LLP
<PAGE> 1
Exhibit 23.01
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Macromedia, Inc. and Subsidiaries:
We consent to incorporation by reference in the registration statement on Form
S-3 of Macromedia, Inc. of our report dated May 6, 1997, relating to the
consolidated balance sheets of Macromedia, Inc. and subsidiaries as of March 31,
1997 and 1996, and the related consolidated statements of operations,
stockholders' equity, and cash flows for each of the years in the three-year
period ended March 31, 1997, and the related schedule, which report appears in
the March 31, 1997, annual report on Form 10-K of Macromedia, Inc., and to the
reference to our firm under the heading "Experts" in the Prospectus.
As indicated in our report, we did not audit the financial statements of Altsys
Corporation, a company acquired by Macromedia, Inc. in a business combination
accounted for as a pooling of interests for the nine months ended September 30,
1994. Those financial statements were audited by other auditors whose report
has been furnished to us, and our opinion, insofar as it relates to the amounts
included for Altsys Corporation for such periods, is based solely on the report
of other auditors.
/s/ KPMG Peat Marwick LLP
-------------------------
KPMG Peat Marwick LLP
Palo Alto, California
July 23, 1997
<PAGE> 1
Exhibit 23.03
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
on the financial statements of Altsys Corporation dated November 28, 1994
incorporated by reference in this Form S-3. It should be noted that we have
audited the financial statements of Altsys Corporation as of and for the
nine-month period ended September 30, 1994. We have not audited any financial
statements subsequent to September 30, 1994 or performed any audit procedures
subsequent to the date of our report.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Dallas, Texas,
July 24, 1997
